SF Pier Shooting

7 Jul

I know that this is probably an unpopular position, but I am strongly offended by the discussion about the SF Pier suspect’s immigration history.  This incident should not be used to punish other undocumented people who commit minor crimes (e.g. stealing food from a grocery store, TRUE STORY).  In addition, without commenting about whether this incident was an accident because I do not have any facts to make that decision, I think the discussion shows the lack of a moral compass of American citizens.  It is amoral to think that it is justified to send so called dangerous people, or other convicts, to other countries, demonstrating that we do not care if violent crimes are committed in other countries.  We have a history of doing this with gang members, only making the problem of violence in South America worse, without taking any responsibility for it.  There has to be some kind of culpability in taking the position that it is not our problem.  Where someone is born is completely arbitrary and should not affect whether one country over another should deal with problems created by that person.

Brady/Pitchess Case

6 Jul

I could never understand how Pitchess and the statutes protecting police misconduct files could be constitutional under Brady.  You would think that the rule that the government must disclose exculpatory information would require the government to disclose exculpatory information, even if the evidence is of a cop’s misconduct.  This is especially true where it is established law that the police are an arm of the prosecution.  Apparently the prosecution has no requirement to disclose excuplatory information in a personnel file.

In this case, the police notified the DA that there was potentially exculpatory information in a police personnel files.  The appellate court held that, under Brady, the prosecution had an obligation to file a pitchess motion and disclose any fruits of that motion.

The Supreme Court reversed this decision.  The Court reasoned that because the prosecution and the defense are equally capable of obtaining the information through a Pitchess motion, the prosecution has no obligation to file the motion as long as the prosecution notifies the defense of the police tip about potential misconduct.

First, the Court said that the prosecution does not have access to an officer’s personnel file outside of the statutory rules protecting the privacy of the files.  Second, the court said that the prosecution had a duty to relay the police’s tip about exculpatory information to the defense.

In ruling that the prosecution does not need to file a pitchess motion to obtain exculpatory information, the court stated that the defense has an equal opportunity to file the motion.  There is law to support the idea that there is no Brady violation if the defense has access to the evidence.

My question is this: because the defense has to make a showing of good cause to have a pitchess motion granted, isn’t the prosecution under a duty, under Brady, to at least inquire with the police department whether there is any exculpatory information about a particular officer? The  defense made a similar argument, contending that the burden to have a pitchess motion granted is too high, which the Court rejected.  The defense also argued that to meet the reasonable belief requirement to obtain pitchess records, he would need notice of what information would be in the file.  The Court also rejected this, saying that the defense does not have to have personal knowledge, they only need to show a belief that people have filed complaints against the officers.  I do not understand that logic.  How can you have a belief that there are complaints without any facts to support that belief?  Such facts could come only from some kind of personal knowledge that there are complaints; you can’t just say you have a belief that there would be a complaint because your gut tells you the cop is a bad cop.

This is a terrible decision.  I want the US Supremes to reverse.



1 Jul

So apropos of my faux pas in my rendition of a recent prosecutorial misconduct case, where I violated my own rule of law in failing to name names, check out Kozinski’s recent comments in a piece in the Georgetown Law Journal:

Defense lawyers who are found to have been ineffective regularly find their names plastered into judicial opinions, yet judges seem strangely reluctant to name names when it comes to misbehaving prosecutors. Indeed, judges seem reluctant to even suspect prosecutors of improper behavior, as if they were somehow beyond suspicion….Naming names and taking prosecutors to task for misbehavior can have magical qualities in assuring compliance with constitutional rights.

If judges have reason to believe that witnesses, especially police officers or government informants, testify falsely, they must refer the matter for prosecution. If they become aware of widespread misconduct in the investigation and prosecution of criminal cases, a referral to the U.S. Department of Justice for a civil rights violation might well be appropriate.

Kind. Of. Amazing. #alwaysnamenames

Corgi con!

30 Jun

corgi convention in sf! So cute. Unfortunately, Jane Doe dislikes the beach (the water terrifies her) and she is very picky about which dogs she befriends.  Too cute, though.



Death Penalty Sentence Reversed

29 Jun

New case today reversed the death penalty finding on the ground that the court erroneously dismissed three jurors who expressed opposition to the death penalty but who were never asked if they could put their personal beliefs aside if asked to.    What I find interesting about this is that this is one of the arguments raised in Scott Peterson’s opening brief.

Interestingly, in the Peterson brief the attorneys argued that the exclusion of the jurors also violated Peterson’s right under the eighth amendment in the guilt phase in the sense that these jurors who were excluded may have been more likely to acquit.  This is a pretty creative argument, though it seems like it might not carry the day because it is hard to prove.  Who knows what they would have day.  Will be interesting to see how this plays out.

Reversal: Juror can’t testify in a trial where he was formerly a juror

26 Jun

Juror gets kicked after he overheard a slightly incriminating cell-phone conversation.  Prosecutor calls him to testify. Existing case law is clear that because other jurors may be partial to that juror’s testimony based on a shared experience, the testimony would be unconstitutional.  Reversed.

Screech to serve time!!!

25 Jun

Screech has been sentenced in his stabbing case for possession of a concealed weapon(a knife) and disorderly conduct to 120 days in the pokey!!!  He is to serve two 60 day stints. Seems kind of excessibe but it is an aggravated situation given that he did stab someone. Poor guy.

Supreme Court decision on obamacare; take away: Scalia is a big (fat) idiot

25 Jun

so this post isn’t really about the merits of the obamacare decision, though I’m obviously elated with the outcome. Rather, it is a response to a particar assertion of Scalia in his awful and melodramatic dissent.  Scalia alleges: “The Court’s decision reflects the philosophy that judges should endure whatever interpretive distortions it takes in order to correct a supposed flaw in the statutory machinery.” Can we say hypocrite??

specifically, I’m referring to Scalia’s interpretation of the constitution which is that a fourth amendment intrusion based on race is constitutional. How do you reconcile this with the language in the fourteenth amendment which specifinally says that the law cannot discriminate on the basis of race?

Scalia has made comments indicating that his is opposed to gay marriage. How do you reconcile this with the due process clause and the court’s statement in  Loving v Virginia: “marriage is one of the basic civil rights of man.”

scalia was for the demolition of the voting rights act, despite its plain language, reasoning that the statute relies on data that was 40 years old. Um, since when is that a principle of statutory interpretation or law? Isn’t that essentially coming up with a reason to nullify the law in favor of your own philosophy?


who to believe holly or kendra? and where the hell is bridget??

24 Jun

So, Kendra has come out to say Holly is full of shit and just has an axe to grind.  Holly did make a good point to US Weekly that Kendra probably doesn’t read, so it’s unclear what Kendra actually knows about the book.

In any event, I write off Kendra’s comments.  Holly’s book was about her own experience, how Hef made her feel, and she readily admits that while she was with Hef, she overlooked red flags, truly believed that she was in love with him and that he was a good person.  So I don’t really see how anyone could say that this is false. It just seems odd that Holly would spend over 100 pages lying about her experiences.  To the extent Holly spoke for Kendra I believe Holly because obviously Kendra was not all rainbows and unicorns about hef and the lifestyle given that she apparently cheated on Hef for 8 months an ultimately left despite having a popular, presumably highly paying, TV show (which at that point had not ended).  Kendra also wrote in her book that she had little interaction with Hef.  Holly, however, had much more interaction with him as she was at the mansion for seven years and lived in his room.  Also, it is totally possible that Hef was nicer to Kendra but emotionally/verbally abusive toward Holly.  I think it’s a little ridiculous for Kendra to accuse Holly of being opportunistic when Kendra clearly capitalized, like all of the women, on her opportunity to live in the mansion and be on TV.

It’s odd because I always liked Kendra way more than Holly.  Holly just seemed too fake. Maybe that is because, as she says, she was faking it.

Also, when is Bridget going to weigh in (no pun intended, she was always a lil fat)? Obviously she would be team Holly but I’d like to hear what she has to say.  Silent on twitter too.


Super interesting case re prosecutors efforts to undo a plea

23 Jun

there is nothing that infuriates me more than when a prosecutor is asleep at at the wheel and then tries to punish you or your client for their own negligence read: idiocy.  One time this happened to me, without going into specifics, a prosecutor accused me of being unethical because of something that happened on the record when the prosecutor had made an appearance but apparently wasn’t paying attention.

Anyway today’s decision involves a case where the prosecutor let d plea for an upskirt situation based on a police report which mentioned a molestation incident with a separate report number. After the plea to the misdemeanor, the police notified the prosecutor that they could make a case for the molestation incident so the prosecutor moved to have the plea set aside which, of course, the trial court granted after an evidentiary hearing.

the appellate court granted the defendants writ.  The prosecution’s theory was that the plea was a product of a mistake of fact. The appellate court said under contract law, assuming it applied, a mistake of fact cannot undo a contract where the party assumed the risk of the mistake while knowing that there was more information they could acquire but failed to acquire it. I mean that is this exact situation. The court was not persuaded by the argument that the da only perused the police report due to a busy calendar (always their excused for not doing their job) or that the defense attorney somehow had an obligation to alert the prosecutor to other case (I mean really??!!!) also luckily the trial court found that the defense attorney did not mislead the prosecutor which foreclosed another argument.  Finally the court rejected a public policy argument which, by the way, despite what they teach you in law school, never carries the day. Lovely.