California Criminal Lawyer Blog

SAN DIEGO CRIMINAL DEFENSE: CALIFORNIA SUPREME COURT DECLARES NICOLE BROWN SIMPSON HEARSAY RULE UNCONSTITUTIONAL

Fri, 11 May 2012 15:20:15 -0800

California Evidence Code sec. 1370 (aka: the Nicole Brown Simpson hearsay exception) creates an exception to the hearsay rule for statements made by someone describing a threat or actual infliction of harm where the person is unavailable.

The California Supreme Court recognized that the videotaped interview of the witness who was unavailable for trial, which would be admissible under California Evidence Code sec. 1370, violates Crawford (541 U.S. 36) and confrontation; since it is purely testimonial.

Now, anytime a prosecutor tries to use California Evidence Code sec. 1370 for a statement made to the police, the analysis here ought to close the door.

Since the context here is a death penalty case, the California Supreme Court finds harmless
error and affirms the death verdict.

People v. Livingston; 2012 DJ DAR 5410; DJ, 4/27/12; Cal. Supremes

SAN DIEGO DUI DEFENSE: EXPERT TESTIMONY CONCERNING PHYSIOLOGICAL VARIABILITY AFFECTING BREATH TESTING IMPROPERY EXCLUDEDg Breath Testing Improperly Excluded

Fri, 04 May 2012 16:24:44 -0800

Chalk one up for Chuck Sevilla and Chris Plourd (now The Hon. Chris Plourd!) for their great work in Vangelder. But, as usual, the young'uns in the misdemeanor unit of the City Attorney's officer have stamped their feet and cried "foul" all the way up to the Supreme Court. Don't they know that the Supreme Court will not baby sit them as many of our local judges will? Well, here goes. Below is a synopsis of Vangelder.

People v. Vangelder (2011) ___Cal.App.4th___ (Fourth Dist. COA – Docket No. D059012 (Note: Petition For Review has been filed and the decision is not yet final)

Defendant appealed the trial court's exclusion of physiologist Michael Hlastala's scientific criticisms concerning the reliability of the data produced by breath test machines which assume the breath samples measure only alveolar (deep lung breath) air. Defendant's offer of proof was that the assumption is not always valid due to a series of physiological factors (e.g., individual breathing patterns, body temperature, blood hematocrit, and breath temperature) that may affect the transmission of alcohol in gas form, from the bloodstream to the lower and upper portions of the lungs, to the trachea and mouth and back again, thereby making such breath measurements unreliable, and undermining, in turn, the application of the standardized partition ratio calculation for converting breath levels to blood-alcohol levels.

Held: The trial court prejudicially erred in refusing to allow scientific testimony to be presented that would have raised doubts about the reliability of the EC/IR and PAS breath testing devices, with respect to the physiological variables that can affect the sample of breath or air taken.

Distinguishing the California Supreme’s Court’s prior decision in People v. Bransford (holding that evidence of partition ratio variability is irrelevant and inadmissible on the per se charge (i.e., driving with a .08 percent or higher alcohol content), the Court noted that this was not an attack on the partition ratio employed, but rather a critique on the assumed nature and quality of the breath samples.

LOS ANGELES SHERIFF BACA DECIDES TO CLOSE MEN'S JAIL PENDING FBI INVESTIGATION INTO BRUTALITY

Wed, 11 Apr 2012 11:11:53 -0800

By Robert Faturechi, Los Angeles Times
April 10, 2012, 7:11 p.m.

Facing an FBI investigation into brutality in his jails, Los Angeles County Sheriff Lee Baca publicly committed Tuesday to shuttering much of his most problematic lockup, Men's Central Jail, barring some unexpected hike in violent crime.

In the past, Baca has tied the idea of shutting down the troubled downtown Los Angeles facility to the county agreeing to pay for an expensive new jail. The Times reported last month that Baca was now open to shutting down the old section of Men's Central Jail — the epicenter of violent clashes between deputies and inmates — even without that new jail.

Speaking at a news conference outside sheriff's headquarters, Baca stated those plans publicly for the first time Tuesday. He dismissed the idea, however, that he was making the shift because of the intensified scrutiny in recent months of abuse inside his jails.

"Bear with me if it sounds like I'm changing my tune ... investigations and allegations are not bases for rational management decisions," Baca said. "We're not talking here about all of a sudden we've been put in a corner."

Instead, Baca said his new outlook was spurred by a report commissioned by the American Civil Liberties Union that found Los Angeles County's jail population could be reduced by, among other measures, increasing the number of inmates who are released back to the public and monitored electronically.

Baca said another development was the opportunity to house some inmates at fire camps that have been used for state prisoners, and moving other inmates to facilities outside the county.

Baca declined to give a timeline for the closure.

For years, Men's Central Jail has been Baca's most troubled lockup, plagued by inmate killings, excessive force by guards and poor supervision. About 1,800 inmates, many of them the county's most violent, would have to be moved to other sheriff's facilities.

If adopted, the plan would solve what has long been a major problem for the department: housing the most violent inmates in an antiquated facility. Men's Central is designed with long rows of cramped cells, rather than the more modern circular configuration that makes controlling inmates, supervising jailers and protecting employees significantly easier.

But closing the section of Men's Central would also reduce the number of total inmates the system can handle. The Sheriff's Department already releases some inmates early because of a lack of funding and is expected to receive thousands of new inmates under a plan that is sending to county jails offenders who previously landed in state prison.

County Supervisor Michael Antonovich warned against shutting down Men's Central without a "comparable replacement," saying such an action would "release criminals into our communities" and make "a mockery of our criminal justice system."

CIVIL RIGHTS: NY PRISON "LOSES" VIDEO OF PRISONER'S BEATING

Wed, 11 Apr 2012 09:14:23 -0800

When Kadeem John, an 18-year-old inmate at Rikers Island, was beaten severely by another prisoner in 2010, the attack was captured by a digital surveillance camera, correction officials have said.
But when Mr. John’s lawyers sued New York City and sought to review evidence in the case, they were unable to view the recording, they say, because it had been destroyed.

The city’s failure to preserve the recording has sparked an intense legal dispute, with a federal judge in Manhattan, Robert P. Patterson Jr., agreeing recently to impose sanctions on the city that could complicate its ability to defend against the lawsuit.

Surveillance cameras are becoming increasingly common in New York’s jails — correction officials said they planned to have 2,800 by the end of 2013 — and the recordings may emerge as critical evidence in lawsuits.

In court last month, for example, lawyers for the city told Judge Patterson that the actual recording was unnecessary because a supervisor who had viewed it could testify about what it showed.

Mr. John’s lawyer, Adam R. Pulver, disagreed. “A videotape is unique,” he said. “It’s irreplaceable. It’s neutral. A jury should be entitled to see what the video showed.”

The city, which is contesting liability in the case, has said in filings that the recording “was destroyed in accordance” with a “record retention schedule” because officials did not expect litigation.

“There is no evidence, as we understand it, of staff complicity in the inmate fight involving Mr. John,” said Sharman Stein, a correction spokeswoman.

But Mr. John’s lawyers contend that he was beaten by other inmates who effectively ran his unit for teenagers at the Robert N. Davoren Complex on Rikers Island. They say the assault fit a pattern cited by law enforcement authorities in which favored prisoners receive tacit approval to keep order by beating and threatening other inmates.

Mr. Pulver said the lawsuit alleged that officers “stood by and allowed” the beating to happen. “We cannot say for sure whether the video would support that or not,” he added in court, “but that’s because we’ve not seen the video.”

Mr. John was jailed in June 2010. The suit says he learned about an “inmate enforcer” on his unit who led a team of prisoners and controlled access to telephones, seating arrangements in a dayroom and the distribution of cigarettes. The inmate’s “domination was blatant and apparent” to the staff, the suit charges.

On June 26, Mr. John, who had earlier refused an order made by the inmate, was punched in the head from behind, and then in his face and lower back, the suit says, while being escorted with other prisoners, and no officer intervened.

He was moved into a dayroom “where he remained, in plain view of corrections officers, bleeding internally and slipping in and out of consciousness, for a significant period of time,” the suit adds.

He suffered kidney damage and bleeding in the brain, Mr. Pulver said.

The next month, the Legal Aid Society, which is representing Mr. John along with the law firm Emery Celli Brinckerhoff & Abady, wrote to a correction official requesting an investigation. She responded that one would be undertaken, filings show.

A year later, in July 2011, Jonathan Chasan, a Legal Aid lawyer, asked whether any video existed of the incident. The official replied that no recordings had been preserved. In February, the lawyers received documents from the city that described the recording and how it was used, and stated that it no longer existed.

The documents showed that three days after the assault, a supervisor viewed the recording, identified the assailant and prepared a report of the incident.

Another report shows that officials did not fully investigate until more than a year after the attack. By then, the recording was gone. There was no request to preserve it, the report says, and the surveillance system stored recordings for only 60 days.

Judge Patterson granted the plaintiff’s requests that the city be barred from offering testimony about what was on the recording, and that it be made clear to the jury that a recording had existed and would have supported the plaintiff’s version of events.

In the hearing, a lawyer for the city, Diep Nguyen, argued that a sanction was inappropriate.

“Even though you destroyed the tape after notice of the assault?” the judge asked.

“Unfortunately, the order to preserve the tape did not trickle down,” Ms. Nguyen said
.

by a digital surveillance camera, correction officials have said.

But when Mr. John’s lawyers sued New York City and sought to review evidence in the case, they were unable to view the recording, they say, because it had been destroyed.