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Reversed child molest case for violation of right to cross: 5yo c/w refuses to answer questions

18 Mar

Wow.  5 year old child molest complaining witness refuses to answer over 150 defense questions which the Court of Appeal held to be “substantive.”  Conviction reversed (D sentenced to 15-life.).  Important case on the right to confront and cross witnesses under  novel circumstances, with few cases on point, as noted in the opinion.  And, a shout out to a kind defense attorney.

The Court:

“Here, daughter refused to answer hundreds of questions, of which approximately 150 were substantive. And nothing about her lack of cooperation can be attributed to the trial court, prosecutor, or defense counsel, all of whom took laudable measures to try to make it easier for her to testify. These measures included having daughter testify by closed-circuit television, taking frequent recesses during daughter’s testimony and breaking early, allowing daughter to move about, draw, and eat while testifying, and questioning daughter gently and at length on safe but irrelevant topics. The trial court and defense counsel also both encouraged the prosecutor’s efforts in urging daughter to cooperate, and defense counsel tried to build rapport with daughter rather than to antagonize her.”

On the OJ knife

4 Mar

 

Apparently a cop was give a knife unearthed by a construction worker that was buried at the OJ estate.  The cop purportedly kept the knife as a trophy and did nothing to have authorities investigate whether it was the murder weapon.  When he finally told another cop to–get this–find out OJ’s case number to add to the frame he intended to use to encase the knife, it is now being analyzed for fingerprints, DNA, etc.  WOW.  Question: can OJ be prosecuted for destruction of evidence? Answer: probably not. Statute of limitations.  But how would concealing the weapon play out in that circumstance? As far as I know the tolling of a statute of limitations to allow for a prosecution to occur after the statute expires applies to fraud.  Is this a crime of fraud?  Is there a Kellet/Double Jeopardy even though the prosecutors were not aware of the location of the knife?  That probably does not save them because given the fact that they did not have the knife they conceivably knew that it had been concealed/destroyed. VERDICT: another NG for OJ.

BREAKING NEWS: SCC Deputies held to answer for murder of Tyree

3 Mar

Per Mercury News Reporter’s live twitter feed.

the good news and the bad news

29 Feb

Great opinion last week.  Terrible opinion last week.

Good news first:

Reversible error to admit coppy “use of force” expert in PC 69 case because it was not the proper subject of expert testimony, cop misstated the law when leaving out certain factors from the Supreme Court case on use of force, and the testimony was only “marginally relevant.”

Bad news:

The Fourth District COA held last week–get this–that Miller does not require a remand to the trial court for consideration of the mitigating factors to decide if an LWOP juvenile sentence is appropriate because 1170(d)(2)(A)(i) allows a juvenile to PETITION for a parole hearing where those factors will be considered.

The Court relied on the 2016 Supreme Court Case Montgomery v. Louisiana which stated: “The procedure Miller prescribes is no different. A hearing where ‘youth and its attendant characteristics’ are considered as sentencing factors is necessary to separate those juveniles who may be sentenced to life without parole from those who may not. [Citation.] The hearing does not replace but rather gives effect to Miller’s substantive holding that life without parole is an excessive sentence for children whose crimes reflect transient immaturity.” (136 S.Ct. 718).  

Here are my problems with this case which I have not thoroughly researched:

(1) is the standard at a parole hearing (assuming the minor gets past the petition for a hearing stage) the same standard that would at a sentencing hearing on juvenile LWOP reconsideration? The Court did not mention this point.

(2) 1170 DOES NOT provide that a juvenile is entitled to a hearing on whether LWOP is appropriate under its enumerated factors; he is entitled only to have his petition for a hearing considered.  Therefore the petition could be denied without any Due Process attendant to a sentencing hearing.  This is an inadequate remedy considering Montgomery explicitly contemplated a hearing, not a chance for a hearing (see quote above).    The COA recognized this point but essentially said a petition for a hearing and a hearing are the same thing because the factors in Graham are considered in the petition.

(3)  1170 puts the burden of persuasion for a hearing on the minor in that the court must find that the assertions in his petition for eligibility are true by a preponderance of the evidence. But, Miller held that a juvenile LWOP sentence is presumptively invalid–putting the burden on the prosecution to prove it is justified. The COA said as long as the burden is on the prosecution the procedure in 1170 is fine, without explaining how 1170 places the burden on the prosecution or stating that the court was effectively amending the statute.  Maybe I’m misinterpreting the statute or holding?

(4) a juvenile is eligible for parole only after 15 years in custody and if denied a new hearing must way 5 more years for another hearing.  If denied again he has to wait 4 more years.  This may or may not be a problem because Miller/Graham does not say when a juvenile is entitled to a hearing and there is not a problem with a juvenile spending 15 years in prison, only with spending life in prison (and even then there is no problem so long as he is found to be incorrigible).  I am somewhat unclear but I think if the is denied after his third petition he cannot apply again:  “… If recall and resentencing is not granted under [the 3rd] petition, the defendant may file another petition after having served 24 years. The final petition may be submitted, and the response to that petition shall be determined, during the 25th year of the defendant’s sentence.”  Is the denial of the first petition all that is required because Miller/Graham only require one consideration of resentencing?  Probably.

In short this is a terrible, ridiculous case.  There are probably many other problems with it that I do not understand.

gratuitous corgi photo

21 Feb

#really?!

As a passerby-er once said about Jane Doe: Look at that little dog with dem stumpy ass legs!

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ugh

19 Feb

Amazing article in the LA times re so cal police shooting 2000 persons since 2004.  WTF?  Including one incident where an officer was acquitted for shooting an unarmed man after he told the officer that he meant no harm; all on video and no visible provocation.  WTF WTF ????? Great investigative journalism.   I can’t handle it.

Yes, I been sayin that Scalia is not a true textualist or originalist or whatever else everyone claims to respect him for.  In fact, he changes his MO depending on the outcome.  People need to stop with it.  Respect him if you agree with his political leanings and inserting Catholic values in his opinions notwithstanding the ORIGINAL meaning of the first amendment.  But don’t reinvent history.

Finally, I have been disturbed all day by this.  This story reports that a man with Alzheimers was arrested for trespassing and the trial court dismissed the case.  He was in custody and in the mental health unit, they had to have known he was incapable of caring for himself.  His friend came to the Santa Clara County jail and begged them not to release him alone.  After waiting for hours, the friend left to get food.  He returned and was told that the man was released.  The friend then drove around for hours looking for the man to no avail.  In fact, he had not been released and was released the next morning (no mind the fact that his case had been dismissed more than 12 hours before).  The man wandered on to 880 and was struck by a car and killed.  The former director of the SCC mental health unit stated: “There’s some who are just mean, they’re mean, and you know that comes from the top, compassion can be taught. The sheriff sets the tone, the sheriff makes things happen[.]”

According to the Sheriff, the man’s “release followed established procedures.”

Best. Speidi. Article. Ever.

19 Feb

Came across this article making headlines because Spencer Pratt of the Hills stated that the cancelling of the Hills was like 9/11.  Of course, consistent with Spencer Pratt’s admitted MO, the statement was for attention–and it worked.  But, the interview itself is pretty interesting.  Nothing new really–they created their villain personas for ratings and for money.  They blew all their money on clothes, crystals, make up artists, and other extravagances.   And, they are living in his parents’ beach home rent free.  Eesh.   Good read.

Nice parole condition reversal

18 Feb

Even though moot because D was off parole, Court of Appeal held that conditions restricting internet use were vague.  Lovely. And enough already with these internet restrictions!

Dog Show Corgi

18 Feb

Super Cute

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Judges gone wild!

18 Feb

Interesting judicial disciplinary actions within the last few months…

  1.  Scott Stuart, Santa Clara County: misdeed: Ex parte conversation with DA post-trial in a misdo about how she did a great job, the PD sucked, and how he intended to sentence the defendant before the hearing.  MAJOR props to the DA who reported the incident to her supervisor and attempted to end the conversation.  MAJOR props to her supervisor and Jeff Rosen for reporting it the PD’s office.  I feel bad for the DA whose name is associated with this; what a brave attorney.  Idiotically, Stuart’s defense was that it did not matter that he talked about sentencing with her because he had already made up his mind about sentencing–more misconduct considering they had not had the hearing.  And, he had not yet been to the judicial training, but he has been an attorney for 20 years and told the DA “this conversation never happened.” YIKES.  Sentence: transferred to small claims but now in family law.
  2. Joseph Bergeron, San Mateo County, Misdeed: sexism for asking female DA to bring him coffee, jerkism for throwing paper at a clerk after asking if she played basketball, and for talkin mess about a clerk loudly.
  3. Christopher Wilson, Humboldt, Misdeed: falsely affirming that no matters had been pending before him for more than 90 days so he could get paid.
  4. Valeriano Saucedo, Tulare, REMOVAL!, bizarre stalker esq behavior including, but not limited to, giving a clerk $26k and other gifts w/the excuse that he was “mentoring” her and this odd thing about writing an “anonymous” letter to her husband accusing her of having an affair with his bailiff, then using his judgy powers to intervene and save her from having the letter sent to her husband all to get her to have a”special friend” relationship with him…INTERESTING.