State Bar disciplinary charges filed against prosecutor for misconduct & reversal of conviction in (an unrelated) published case today!

23 Feb

Chalk two tallies up for justice today!  The state bar announced they are filing disciplinary charges against former City Attorney (yes, THE City Attorney at the time) Carmen Trutanich (always name names) for Brady violations (and failing to correct false testimony) in a death penalty case.  The matter arose before the State Bar after a federal judge overturned the murder conviction and death sentence due to the misconduct.  Read full press release below.

Meanwhile, the Second District reversed a child molestation case on the basis of prosecutorial misconduct after a Supreme Court remand for the appellate court to consider the case in light of Centeno (which, btw, is a TERRIFIC prosecutorial misconduct case.)

The misconduct was misstating the law as follows:

“Let me tell you that presumption [of innocence] is over. Because that presumption is in place only when the charges are read. But you have now heard all the evidence. That presumption is gone.”

The Court held this argument was a misstatement of the presumption of innocence standard (duh.)

The prosecutor also “buttressed this grossly inaccurate explanation of reasonable doubt with the erroneous statement that the jury’s decision regarding defendant’s guilt is just an ordinary decision people make “a hundred times a day.”

Appellate counsel argued that the “hundred times a day” argument was also misconduct: “Cowan cites People v. Nguyen (1995) 40 Cal.App.4th 28, 36, where the court strongly disapproved of arguments suggesting the beyond-a-reasonable-doubt standard is used in everyday life.”  The Court declined to address the propriety of the second argument because there was no objection and because the error could have been cured by an admonition.

People, PLEASE object to this “hundred times a day” argument not only on the basis that they cannot equate BRD to everyday decisions, but also on the ground that it is misconduct to say that defendants are convicted everyday on this standard.  I really think it’s improper for the jury to consider other cases/convictions because, if for no other reason, the jury does not even know the strength of the evidence in other case. (Note, I haven’t researched this second issue.)

Press release:

STATE BAR FILES DISCIPLINARY CHARGES AGAINST FORMER L.A. CITY ATTORNEY FOR PROSECUTORIAL MISCONDUCT

Contact: Laura Ernde 415-538-2283 barcomm@calbar.ca.gov

SAN FRANCISCO, Feb. 23, 2017 – The State Bar of California has filed disciplinary charges against a former Los Angeles City Attorney, Carmen A. Trutanich, stemming from alleged prosecutorial misconduct during a death penalty case he handled more than 30 years ago when he was a deputy district attorney in Los Angeles County.

Trutanich, 65, [bar #86629], is accused of withholding the true name and address of a witness from the defense and failing to correct false testimony by two of his witnesses in the People v. Barry Glenn Williams, Los Angeles County Superior Court case A623377.

Last year, a federal judge cited prosecutorial misconduct in overturning Williams’ murder conviction and death sentence, which then triggered a review by the State Bar’s Office of Chief Trial Counsel. The bar is notified when a criminal conviction is overturned due to attorney misconduct.

Trutanich, who served as the elected Los Angeles City Attorney from 2009-2013, will have a chance to respond to the charges, which must be proven in State Bar Court and approved by the California Supreme Court before any discipline is imposed.

The State Bar Board of Trustees in October recommended enactment of a proposed new ethics rule regarding the special duties of prosecutors in criminal cases, specifically addressing their responsibility to disclose evidence to the defense. The rule is awaiting approval by the California Supreme Court. The charges against Trutanich are based on existing rules and laws regarding a lawyer’s duty to uphold the law and to not suppress evidence.

The filing of disciplinary charges by the State Bar does not constitute a finding of professional misconduct. Attorney discipline charges are adjudicated in State Bar Court. The California Supreme Court has final authority over all disbarments and suspensions.”

Holy COW! Sentence modified because mandatory use enhancement was cruel and unusual (as applied)

14 Feb

I remember reading about this super sad case where this young woman shot a guy who had crashed her birthday party, beat up her father, and then appeared to be retrieving something (a weapon?) from his car.  She was convicted of attempted voluntary manslaughter, mayhem (he was paralyzed, but really with that charge?!) and shooting at an occupied vehicle.  She was sentenced to 27 years to life because of the 25 year use clause which applied solely because of the mayhem conviction.  Seriously, fuck the DA for adding that charge. That’s terrible.

The judge lamented imposing the lengthy term.  Jurors wrote declarations saying they were upset about the sentence; one juror said he felt betrayed.  The public defender cried at sentencing.

The first district ruled this was a cruel and unusual sentence, recognizing how rare its decision was.  Even better, this is a published case.  The COA then modified the sentence to 12 years.  How it reached that number is kind of odd.  They did not remand the case to the trial court for resentencing, and 12 years was not the sentence had the 25 year enhancement not been applied.  Had the enhancement not been applied, the sentence would have been 2 years.  The COA felt 2 years was too lenient. They modified the sentence to 12 years because the trial court had stayed a 12 year term for the attempted voluntary manslaughter conviction.

Anyway, what a remarkable result. 12 years is still a lot for this crime in light of the mitigating circumstances, but what a victory.

 

innocent guy gets new trial

26 Jan

It’s always good when any court  ruling starts like this: “The Habeas Corpus secures every man here, alien or citizen, against everything which is not law, whatever shape it may assume. — Thomas Jefferson.”  This poor guy has been in prison for 19 years (serving a 75 year sentence) for armed robbery.  Now he’s been awarded a new trial. His original habeas petition was denied because he could not prove he was innocent even though he submitted declarations from accomplices stating that he did not perpetrate the crime. The evidence at trial that he was good for it was exceedingly week.

But, the habeas statute in CA has been amended. Under the new law (PC 1473, subd. (b)(3)(A)), a defendant doesn’t have to prove innocence to win if he can show he has found material new evidence that would have, more likely than not, changed the outcome at trial had the jury heard it.  Under this lower standard, the appellate court held that the new evidence warranted a new trial.  Hopefully there is no new trial and he is immediately released.

another life kidnapping sentence reversed for insuff evid of substantial movement

17 Jan

LOVELY.  Insufficient evidence of kidnapping for robbery where Ds moved victims 50ish feet in the same store they robbed.  They did move them from the front of the store to the back but that was not enough.  Recall there was another good one of these recently in a sex case.  Also in this opinion: a few findings of harmless prosecutorial misconduct.  The judge was so annoying in this case doing that thing where he interjected to ask the witnesses questions.  They said this was fine.  They did rule that there was an error from admitting hearsay, which was testimony from a cop that CW id’d defendants from a voice exemplar, when she was previously unable to differentiate between the defendants from a photo line up.  So there’s that.  Also a bunch of their prison terms were stayed per 654. And, they vacated a restitution order under the doctrine that you can’t be ordered to pay restitution for dismissed/acquitted conduct.  Keep in mind, though, that applies only when D isn’t sentenced to probation.  Just like that you’re no longer serving life.

COA: PRCS sux cause it lacks a “homeless” provision re reporting a residence

10 Jan

D found in violation of PRCS because he failed to report his address to probation even though the guy was homeless and had no residence. Reversed. COA said PRCS does not have any provision that governs how a person is to report his address when he has no address.  COA calls out the legislature asking them to revise the statute it to make it mimic the sex offender registry statute which has a provision to regulate reporting residency for transients.  Good read.

new laws

28 Dec

I was reading a cpda pdf on the new laws and a few caught my eye that I was previously unaware of. Of course, we all know (or should know) that marijuana is now legal with reduced penalties that apply retroactively for possession for sale (11359 is now a misdo) and transportation for sale (pure transportation is not a crime). Note 11359 and 11360 are wobblers IF D has 2 priors. But it is arguable whether “priors” refers to pre prop 64 convictions or only convictions under the newly enacted 11360.  That is because the language says “prior under paragraph 2 of this section” and there was no “paragraph 2” in the old law.

Note, per analogous case law in Prop. 47 context, if you have a client currently in prison who wants to be resentenced under Prop 64 and has a pending appeal, you need to get a stay of the appeal authorized by the COA because technically the trial court does not have jurisdiction and technically the petition for resentencing must be filed in the trial court.  Please email me at juicejusticeandcorgis@gmail.com if you want a sample motion to stay I filed in the COA which was granted after the AG did not oppose it.

We should also know that there is no longer direct filings for juveniles (Prop 57); there is the opportunity for parole after serving the base term (same); there is greater authority for CDCR to award custody credits and no one has any idea how that will work (same).

Another good law is no prostitution prosecutions for juveniles which is a no brainer; why it took so long is beyond me.

Of course there is the bad and ugly: no statute of limitations for certain sex crimes, no probation eligibility for previously eligible sex crimes (the Brock Turner law), expanded/harsher penalties for poss of ammunition and guns etc.

But here are some new laws I had not heard of:

-GOOD: homicide interrogations of adults must be recorded with some exceptions which must be proved by clear and convincing evidence (e.g. malfunction, exigent circumstances, threat to informant); [PC 859.5]

-GOOD: in three counties, you can now make a misdemeanor motion to dismiss under PC 991 even if D is not in custody! [PC 991.5]… I’m not sure if they have named which counties this applies in but hopefully it will be adopted eventually.

-BAD:smoking age changed from 18 to 21? Did I read that right?! [PC 308 and various BPC]

-UGLY-AKA THE WHAT THE FUCK BILL: sex offenders who have to register now have to provide law enforcement with their online “identifiers” e.g. email and social media names.  WTF?!!? Note, this is not published anywhere, it is for law enforcement monitoring. [Amendment to various PC 290… statutes].

Take away re laws in 2017: thank you but also no thank you but re the good ones, thank you thank you thank you.

Prop 66 stayed

20 Dec

If you don’t get email alerts from defender411@cpda.org you ought to.  They just emailed that the Cal Supreme Court issued a stay (see below) on the implementation of Prop. 66–the proposition that speeds up the death penalty and is terrible and awful and unconstitutional. Here’s the word:

 

Petitioners’ “Motion for Leave to File Amended and Renewed Petition for Extraordinary Relief, ” filed on December 19, 2016, is granted. The Clerk is directed to file the “Amended and Renewed Petition for Extraordinary Relief, ” and “Petitioner’s Motion for Judicial Notice in Support of Petition for Writ of Mandate, ” received on December 19, 2016. In order to provide time for further consideration of the amended petition for writ of mandate and to permit the filing and consideration of papers in opposition to the petition, the implementation of all provisions of Proposition 66, approved by the voters on November 8, 2016, as certified by the Secretary of State on December 16, 2016, is hereby stayed. Respondents must serve and file their preliminary oppositions to the petition no later than January 9, 2017. Petitioners may serve and file a reply to the oppositions no later than January 23, 2017. Cantil-Sakauye, C.J., and Chin, J., were recused and did not participate.

Most scathing opinion ever?!

28 Nov

A little late blogging this…the COA issued a scathing opinion in the OC snitch scandal case. The AG argued the trial court erred in disqualifying the entire DA’s office from prosecuting the case. Here’s what the COA had to say about that: “On the last page of the Attorney General‟s reply brief it states, ‘The trial court’s order recusing the OCDA from prosecuting Dekraai’s penalty phase trial was a remedy in search of a conflict.’ Nonsense. The court recused the OCDA only after lengthy evidentiary hearings where it heard a steady stream of evidence regarding improper conduct by the prosecution team. To suggest the trial judge prejudged the case is reckless and grossly unfair. These proceedings were a search for the truth. The order is affirmed.” (Italics in original.) published opinion calling your argument nonesense. In italics. AWKWARD.

Long opinion, but a good read to understand the extent of the outrageous misconduct. It seems the DAs were so deep in it they started relying on idiocy as a defense before the trial court “I’m just not that familiar with Massiah.” Glad the trial court and COA shut it down and the level of outrage I have for Kamala Harris in appealing the order as well as staying hands off has reached new heights. She should be investigating the DAs and Sherrif’s office not defending them with arguments that have now been deemed nonsensical as a matter of law.

I’m also mad at her because she just announced her office will step in to defend the cash bail system–something the SF city attorney won’t do.

Here’s hoping the next AG isn’t worse. Although yes I acknowledge she has some progressive criminal justice policies.

Interesting competency procedural issue: conviction reversed

28 Nov

Court of Appeal reversed a conviction today on an issue the defendant did not initially raise on appeal. D claimed there was not sufficient evidence he was competent after the trial court ruled otherwise. The Court of Appeal held that the real issue was whether the trial court erred in ruling on the ultimate issue of competency without first ruling on whether there was evidence of a doubt of competency. If there was, then the court was to proceed to a full blown trial on competency.

The COA said in actuality the trial court held a hearing on the ultimate issue of competency, missing the first step, and the hearing denied D of due process because he wasn’t allowed to present witnesses or prepare to cross the appointed expert.

I don’t want to make light of someone’s mental illness but I will note that the defendant’s delusion seems pretty pretty pretty understandable and I can’t say he’s alone in having it:

“Defendant explained to Dr. Leeb that when he looked at the prosecutor, he saw “this evil darkness, like an attacking vampire. I get so scared I can‟t sit at the table. I‟m jerking all around. I wanted to dive under the table. I won‟t go into the courtroom.”
Dr. Leeb continued, “When [defendant] stated, I see this evil darkness,‟ he shrank down into his chair, his eyes went wide, and you can [sic] see the fear response on his face, and his voice got high and he says [sic]…I‟m not going to go in there,‟ and he went like this with his arms (indicating), in what appeared to be a protective gesture.” Dr. Leeb then demonstrated the “attacking vampire,” as defendant had described how he saw the prosecutor.”

Insufficient evidence of kidnapping for rape. Weakest. Kidnap. Ever.

15 Nov

Wow.  This dude got an LWOP enhancement for kidnapping for rape? REALLY?! What was the “kidnap”?  Moving CW from one room in the apartment to another and he committed the crimes against her in both rooms anyway.  Where is the substantial distance? Where is the prospect of increased harm?  Glad the COA reversed.  Glad this is published.