Groundbreaking Study Documents How Courts Are Impeding Fair Disclosure in Criminal Cases

November 19, 2014

(SitNews) – A major study released Monday, Material Indifference: How Courts Are Impeding Fair Disclosure in Criminal Cases, revealed that in courtrooms across the nation, accused persons are convicted without ever having seen information that was favorable to their defense.

U. S. Senator Lisa Murkowski (R-AK) offered her observations upon the release of the study conducted by the University of Santa Clara Law School and the National Association of Criminal Defense Lawyers showing that legal mischief – like that seen in the Ted Stevens trial – continues to be a reality in courtrooms nationwide. (Tuesday, November 18th, 2014, would have been Senator Ted Stevens 91st birthday.)

In a prepared statement Murkowski said, “Though Attorney General Eric Holder threw Ted Stevens’ guilty verdict out of court because Department of Justice attorneys played ‘hide the football’ with evidence that could have helped his case, he only dealt with the symptom and allowed the problem to linger among the legal ranks. I hope that his successor will truly commit to uprooting this issue that is undercutting Americans’ faith in the judicial branch.” Murkowski plans to re-introduce her bipartisan Fairness in Disclosure of Evidence Act in the next Congressional session. “We can no longer allow the government to have a finger on the scales of justice, tipping it in its favor,” said Murkowski.

“This groundbreaking study documents one of the major problems facing the nation’s criminal justice system today: the failure to ensure full, fair and timely disclosure of information favorable to an accused person in a criminal action. It is a significant step towards achieving the vital reforms necessary to guarantee a fair trial for every accused person,” NACDL President Theodore Simon said.

Over 50 years ago, in Brady v. Maryland, the Supreme Court declared that failure to disclose favorable information violates the constitution when that information is material. This guarantee, however, is frequently unmet. In courtrooms across the nation, accused persons are convicted without ever having seen information that was favorable to their defense. The frequency with which this occurs and the role it plays in wrongful convictions prompted NACDL and the VERITAS Initiative to undertake an unprecedented study of Brady claims litigated in federal courts over a five-year period. The study asked: What role does judicial review play in the disclosure of favorable information to accused? The results revealed a troubling answer—the judiciary is impeding fair disclosure in criminal cases and, in doing so, encouraging prosecutors to disclose as little favorable information as possible.

The study’s findings are extensive and dramatic including, for example:

• The materiality standard produces arbitrary results and overwhelmingly favors the prosecution. Indeed, in those decisions where the prosecution failed to disclose favorable information, it still won 86% of the time, with the court concluding that the information was not material.

• Courts almost never find Brady was violated by the late disclosure of favorable information. Of the 65 decisions that involve late disclosure of favorable information, only one resulted in a Brady violation finding.

• Favorable information is more likely to be disclosed late or withheld entirely in death penalty decisions. Favorable information was never disclosed or disclosed late by the prosecution in 53% of decisions involving the death penalty, but only 34% of all the decisions studied.

In his dissent to the Ninth Circuit’s 2013 decision denying a rehearing en banc in United States v. Olsen, Chief Judge Alex Kozinski acknowledged that “[t]here is an epidemic of Brady violations abroad in the land” which in his view, “[o]nly judges can put a stop to.” Material Indifference: How Courts Are Impeding Fair Disclosure in Criminal Cases documents that epidemic and sets forth a prescription for how to contain and ultimately cure it. As former Deputy Attorney General David W. Ogden wrote in his foreword to this report, “judges have an indispensable role and obligation to oversee the system’s guarantees of fairness and to make sure that its truth- and justice-seeking mission is fulfilled in each case.”

According to report co-author Cookie Ridolfi, “despite the clear correlation between withholding evidence and wrongful conviction, the results of this study demonstrate that courts persist in tolerating prosecutors’ failure to timely disclose favorable information.” “Judicial indifference toward late disclosure fosters non-compliance with disclosure obligations. The data strongly suggests that the practice of late disclosure has become a trial tactic rather than an allowance for exceptional circumstances,” added co-author Todd Fries. Co-author Tiffany M. Joslyn was clear, “at its core, judicial adherence to the materiality standard following conviction encourages prosecutors to use that same back-end standard to narrow their front-end disclosure obligations. Our study not only confirms this, it demonstrates that front-end reform is necessary and overdue.”

The report concludes by offering three reform proposals that would serve as mechanisms for increasing fair disclosure in criminal cases. First, in each case defense attorneys should request, and judges should grant ethical rule orders – orders for the prosecution to disclose all favorable information in accord with American Bar Association Model Rule 3.8(d). Second, the judicial rules and policies should be amended to require fair disclosure of information. Finally, the most effective mechanism would be to adopt legislation codifying fair disclosure in criminal cases.

Edited by Mary Kauffman, SitNews

Original Source

Read the Report: Material Indifference: How Courts Are Impeding Fair Disclosure in Criminal Cases

Seven Mass Surveillance Tools your police are or will be using

By Kelly Chen, Center For Investigative Reporting

If you’ve been concerning yourself with the Heartbleed bug and the National Security Agency, you might as well have these seven items on your radar, too. Military-inspired technologies are coming home for use by local law enforcement.

Since 2001, federal grants from the Department of Homeland Security have been trickling to local authorities for counterterrorism efforts. But even years after 9/11, these agencies are shopping around for military-inspired surveillance tools that can keep watch on average citizens.

The rise of a surveillance state has raised questions about the legality of how law enforcement agencies acquire new technologies and inform the public of their use. Individual searches and seizures are protected under the Fourth Amendment, but laws addressing mass surveillance of the public are few and limited.

The Center for Investigative Reporting continues to uncover how technology is revolutionizing the way we’re being policed and what that means for our civil liberties.

Here are some examples of surveillance technology that’s already in use:

1. Wide-area surveillance

CIR and KQED discovered that the Los Angeles County Sheriff’s Department conducted a two-week experiment that attached cameras to a manned civilian aircraft (not a drone) without telling Compton residents. CIR reporter G.W. Schulz described it as “Google Earth with a rewind button and the ability to play back the movement of cars and people as they scurry about the city.”

2. Facial recognition software

Military-grade facial recognition software has landed in San Diego County. Using a tablet, police can take a photo of your face and run it against a database of about 348,000 county arrestees. This pilot program also rolled out without any public hearing or notice.

3. License-plate scanners

A license-plate reader mounted on a San Leandro Police Department car can log thousands of plates in an eight-hour patrol shift. “It works 100 times better than driving around looking for license plates with our eyes,” says police Lt. Randall Brandt.

Credit: Michael Katz-Lacabe

While not a new technology, the increasing use of license-plate scanners is raising serious concerns about how that data is stored and who has access to it. One manufacturer, Vigilant Solutions, which also houses a massive private database of plate information, makes law enforcement agencies sign nondisclosure agreements.

4. Streetlights with recording capabilities

Credit: Illuminating Concepts screen shot

In Las Vegas, officials are using ordinary-looking streetlights with many talents. These Intellistreets, as they’re called by designer Illuminating Concepts, run on wireless Internet and can come equipped with add-ons that would allow you to record and shoot video. As of 2013, Las Vegas officials say they are not using these features – they just have the ability to do so.

5. Behavioral recognition software

Credit: RNCCTV screen shot

During the 2012 Republican National Convention in Tampa, Florida, police used behavioral recognition software to amp up surveillance and security. The software uses camera footage to automate suspicious activity detection. To fight back, Jon Gales created an app to track where the cameras were located.

6. Stingray

In California, multiple local agencies from the Bay Area to Sacramento have been using stingray technology to track and collect cellphone data in real time with precision. The ACLU describes a stingray as “a device that mimics a cell tower and thereby tricks all wireless devices on the same network into communicating with it.” News10 in Sacramento tried to find out which agencies in particular are using the device – all refused to disclose how they were using it, and some would not comment on whether they have it.

7. Intelligence analysis software

The Los Angeles Police Department already is using intelligence analysis tools from Palantir, a Silicon Valley-based firm that makes data-mining software and is partially funded by the CIA. The department did not comment on its use of the intelligence program to LA Weekly, but officials explain how they use Palantir on a daily basis in a video testimonial:

 Original Source

Changes to Three-Strikes Law under Prop. 36 are working

By Dan Morain, Sacramento Bee

Sunday, Apr. 13, 2014

Mike Ramos delivered a hard-nosed law-and-order stemwinder, exactly the sort of speech his audience had come to hear.

Appearing at a crime victims’ rally on the west side of the Capitol last week, the San Bernardino County district attorney called for an initiative to restart the death penalty and pledged to campaign for a U.S. constitutional amendment that would grant rights to crime victims and their families.

“I’m going to go everywhere I can for victims,” Ramos told the survivors who had gathered to honor murdered family members and lobby for tougher laws at an event sponsored each year by the California Correctional Peace Officers Associations, the union that represents prison guards.

His speechifying done, Ramos paused to answer a few questions about a topic he did not broach: Proposition 36, the initiative approved in 2012 that rolled back the harshest aspects of California’s “three strikes” sentencing law, itself approved by voters in 1994.

Because of three strikes, California has locked away many miscreants who should never walk on this side of concrete walls and electrified fences. The law also ensnared low-level losers whose third strikes should not have resulted in life sentences.

Under the original law, criminals who committed any felony, no matter how minor, faced life sentences after having been convicted of two prior serious or violent crimes. Under Proposition 36, repeat felons won’t face life sentences unless they commit a violent or serious crime on their third strike. The measure also opened the way for 3,000 third-strikers serving life sentences to be freed if their final crime had been drug possession, shoplifting or some other minor offense.

No county was more aggressive in its use of three strikes than San Bernardino. Since Proposition 36’s passage, San Bernardino County judges have released 235 third-strikers, more than any county not named Los Angeles.

“I think it is working out great,” Ramos told me, although he was quick to say the results are all very preliminary. Ramos had opposed Proposition 36 in 2012. Now he’s trying to make it work.

“Ask me in two years to see if any of them have committed a violent or serious crime,” Ramos said. “They haven’t yet.”

What San Bernardino County is experiencing – or not experiencing – is happening across the state. Maybe, just maybe, the 69.3 percent of the voters who voted yes on Proposition 36 made the right call. In a criminal justice system that too often fails, this story might actually turn out to be a success.

The California Department of Corrections and Rehabilitation’s statistics show that as of April 3, 1,631 three-strikers had been released under Proposition 36. Only 23 have been sent back to custody. That is 23 too many, especially for their victims.

The math works out like this: Strikers have been out for an average of nine months, and 1.4 percent of them have been taken back into custody, compared with 32 percent for other parolees who have been out for nine months.

Crunching other Department of Corrections numbers, attorney Michael Romano, who was a leading proponent of Proposition 36, goes through various categories of other parolees.

Of inmates who serve 15 years or more in prison, 22.3 percent return within a year. A fourth of the parolees deemed to be low risk by prison officials are rearrested within a year.

Nearly 60 percent of parolees who have prior prison sentences return to custody within a year. “Our belief when we drafted Proposition 36 was that these people could be safely released from custody,” said Romano, who heads Stanford Law School’s three-strikes project, which took the lead drafting Proposition 36. “The truth of the matter is that the data are showing they are performing better.”

People being released aren’t saints, as Lorenzo Robinson, 53, readily admits. Robinson was a gang member whose rap sheet includes robbery and assault with a deadly weapon, strikes under the three-strikes law.

He received 25 years to life after being convicted in 2001 of possession of 1.81 grams of cocaine, worth maybe $100. But for Proposition 36, he would have remained in prison until he was well into his 60s, at least. Housing a California inmate costs an average of $55,000 a year. No state can afford that, certainly not for a guy who possessed 1.81 grams of coke.

During his latest stretch, he started following the rules, got a high school diploma and wrote for the inmate newspaper at San Quentin. He vows to remain straight this time. We all should hope for his success.

“I’m not saying I didn’t do things wrong in life. I did things wrong in my life,” he said by phone. “But when I caught 25 years to life, knowing I can’t see the (parole) board until I do 25 years, it had a devastating effect.”

Mike Reynolds was at the crime victims’ rally last week; he rarely misses one. Reynolds is the Fresno wedding photographer who sponsored the three-strikes initiative in 1994 after his 18-year-old daughter, Kimber, was shot to death by repeat offenders in 1992. Reynolds believes Proposition 36 will prove to be a mistake. One of the men responsible for his daughter’s death outside a restaurant in Fresno had been out of jail since her murder. He is back in now, maybe for good.

“People don’t realize this stuff doesn’t go away. Twenty years,” he said, weary.

In November, voters likely will have a say on another change to criminal law. San Francisco District Attorney George Gascón, among the backers of the three-strikes revision, and former San Diego Police Chief William Lansdowne are promoting an initiative that would reduce five nonviolent crimes to misdemeanors.

The crimes include possession of small amounts of drugs, receiving stolen property, certain shoplifting, check forgery, and petty theft with a prior theft-related crime. As it is, prosecutors can charge people with either felonies or misdemeanors.

Its outcome will depend on whether the changes to the three-strikes law work out. Ramos said he will oppose the new measure, as will Reynolds. But consider this: There are 1,157 prison inmates serving hard time for petty theft with a prior. At $55,000 each, that works out to more than $63 million a year. It’s unsustainable.

Original Source

Lesson Learned From the Killing of Andy Lopez

Letter to Editor published in Santa Rosa Press Democrat
October 31, 2013

To The Editor;

Once again we are confronted with the anguish of another killing by law enforcement. Once again we are asking why, after all of the investigations conducted by police and District Attorney, do they keep happening?

The problem is that these are secret criminal investigations, asking only if enough evidence exists to charge the officer with a crime. Ignored are our community’s questions: Was the officer properly trained? Were the most effective procedures used? Did the officer follow them? Should the officer be disciplined? How can we prevent these killings from reoccurring? Why can’t the investigation be conducted in a transparent manner so public can learn what happened?

These questions have only been independently examined once, when the U.S. Civil Rights Commission held hearings here after numerous deaths by law enforcement. The Commission recommended that independent community review boards be established that could issue subpoenas and take testimony under oath. This recommendation has been ignored by our local governments and fought by law enforcement. And the deaths have kept mounting. It is time to follow the Commission’s recommendation and establish community review boards. It is time to end the secrecy. We cannot afford to wait as more lives are taken.

Steven Fabian

Death Penalty Study: 25% of Cases From 10 Counties

Death Penalty Study: 25% of Cases From 10 Counties

by Bob Egelko, SFGate

Thursday, October 3, 2013

Out of more than 3,100 convicted murderers on death rows nationwide, over a quarter have come from just 10 counties, which include Alameda County and four others in California, a new report says.

While the annual number of death sentences in the United States is lower than it has been in about four decades, a large proportion of condemned prisoners come from a relatively small number of counties “where seeking death sentences has been a high priority,” said the Death Penalty Information Center, which opposes capital punishment.

From those prosecutions, “enormous costs (are) passed on to taxpayers across the state,” said the report, published Tuesday.

But any implications that Alameda County is a death penalty mill are inaccurate, said Teresa Drenick, a deputy district attorney and spokeswoman for District Attorney Nancy O’Malley.

Alameda County cases

Since January 2004, Drenick said, the office has charged 171 defendants with murders that carried a possible death sentence, but sought the death penalty in only three of those cases, none since O’Malley took office in September 2009. All three defendants were sentenced to death, she said.

The report covers death sentences from a longer period, starting in 1976, when the U.S. Supreme Court upheld death penalty laws in several states. California reinstated its death penalty in 1977 but did not execute anyone until 1992 because of appeals and court rulings.

The prominence of California counties in the study reflects both the state’s size and a court-ordered moratorium on executions. The state has the nation’s largest Death Row, with more than 740 inmates, nearly twice as many as Texas, which has executed more than 500 prisoners since 1982.

California, by contrast, has put 13 prisoners to death since 1992 and none since January 2006, when federal judges began questioning the state’s facilities, staff training and procedures for lethal injections.

L.A. tops nation

As of January 2013, the report said, Los Angeles County led the nation with 228 condemned prisoners, followed by Harris County in Texas with 101. Alameda County was ninth with 43.

The top 10 counties, which also included Riverside, Orange and San Diego, accounted for 27 percent of the nation’s death row inmates, the report said. More broadly, it said, 62 counties, 2 percent of the counties in the United States, accounted for 56 percent of the condemned prisoners, including Sacramento, which ranked 12th; Santa Clara, 18th; and San Mateo, 39th.

The report also cited a recent study suggesting race was a factor in Alameda County capital cases. According to the study by Steven Shatz, a University of San Francisco law professor, of 473 first-degree murder cases in the county between 1978 and 2001, death penalty prosecutions and death sentences were far more likely when the murder was committed in a south county community like Hayward, where the population is mostly white, than in racially mixed Oakland.

The study focused on the race of the murder victims, not the perpetrators. In south county cases, it said, where 50 percent of the victims in potential capital cases were white and 16 percent were black, county prosecutors were 2 1/2 times as likely to seek the death penalty as in north county cases, where 71 percent of the victims were black. The disparity in death penalty verdicts from juries was nearly 3-to-1.

Shatz concluded that the data should support a legal challenge to death sentences in Alameda County. Drenick, the district attorney’s spokeswoman, said the study failed to note that all capital cases in the county are tried in Oakland with juries selected countywide.

Bob Egelko is a San Francisco Chronicle staff writer. E-mail:

Original Source

Can eyewitness testimony be trusted? Mistaken identity faulted in cases of wrongful convictions

Posted by Steven Fabian, Sonoma County Criminal Defense Lawyer

On the day before Thanksgiving in 2004, a 16-year-old girl walking on Buena Vista Avenue near Highway 94 in Lemon Grove saw an old pickup truck with a camper shell. She didn’t think much about it at the time. She would think a lot about it later.

As she walked under the freeway overpass, a man grabbed her from behind and ripped at her clothes. She smashed him in the face with a CD player and ran across the street. He caught her again, threw her into bushes near a stoplight and sexually assaulted her. When she saw another car on the street, she broke free and ran to it. The driver let her in.

Police were called. Although the victim was unable to provide enough details for a composite sketch of her attacker, she remembered the truck.

A similar vehicle was spotted and the trail led detectives to Uriah Courtney, a 25-year-old construction worker from North Park. His picture was put in a photo lineup and the victim, although not completely sure, picked him out. So did another witness.

Courtney was arrested. The main evidence against him at trial was the eyewitness testimony. He was convicted of kidnapping and rape and sentenced to life. He told the victim in court he didn’t do it and said he hoped the truth would one day come out.

It has. Recent DNA testing on the victim’s clothing cleared Courtney and pointed to a felon who lived about three miles away from where the attack occurred. Charges were dismissed and Courtney freed from prison after serving eight years.

Uriah Courtney, at left, was facing life in prison after being wrongly accused of kidnapping and raping a teenager in Lemon Grove. He was released after the California Innocence Project helped get new DNA testing in the case. He thanked the program’s director, Justin Brooks, at right, during a news conference. — Hayne Palmour IV

The case raises questions about whether enough is being done to guard against mistaken eyewitness identification, long known to be a leading cause of wrongful convictions.

Hundreds of law-enforcement agencies across the country have adopted reforms in recent years aimed at improving ID accuracy. But the key ones haven’t taken hold in San Diego County, where there have been five wrongful convictions involving faulty eyewitnesses, according to the National Registry of Exonerations, a database run by law schools in Michigan and Illinois.

The database lists every known exoneration in the country — 1,168 at last count — since 1989. According to its records, mistaken ID’s were a contributing factor in 43 percent of all cases — and in 81 percent of the sexual assaults.

Another compilation, by the Innocence Project, a national litigation and public-policy group that has a chapter in San Diego, calls eyewitness misidentification “the single greatest cause of wrongful convictions nationwide.” It played a role, the Innocence Project said, in more than 75 percent of cases later overturned through DNA testing.

“Obviously I’d like to see changes,” Courtney said during a news conference last month. “Misidentification puts too many people away, and I happened to be one of them.”

A steady stream of exonerations has prompted government officials from coast to coast to pay more attention to 30 years of social science research showing how unreliable eyewitness accounts can be, especially in traumatic situations such as a violent crime.

The result has been a push for reforms aimed in particular at one of the most enduring symbols of police detectives at work, at once recognizable to any fan of mystery books, TV cop shows and Hollywood thrillers.

The lineup.

Identifying mistakes

As six-packs go, this one’s no party.

To police, a six-pack is a group of mug shots — one is of the suspect, the other five are “fillers” — shown to an eyewitness. Agencies everywhere use them, either with actual photos or pictures on a computer screen.

Ideally, the photos are of people who look alike in terms of age, race, build, hair color and facial characteristics. They should be presented in a way that doesn’t suggest who the suspect is. Those viewing the photos should be told it’s OK to say no one matches the person they saw committing the crime.

But we don’t live in a perfect world, and mistakes get made, both in photo lineups and live lineups. Detectives can inadvertently give clues about which one the witness should pick. Sometimes it’s obvious from the photos — in one rape case, the suspect was the only one whose picture had an “R” written on it.

Once made, mistakes can be hard to undo. In trials where there is no significant physical evidence — and sometimes even in those where there is — an eyewitness account can be the most persuasive thing presented to a jury, especially if it comes from the victim.

“Studies have shown that what a witness will do with a six-pack is pick the person who looks the closest to the one they saw,” said Jan Stiglitz, a professor at California Western School of Law in San Diego and co-director of the California Innocence Project based there.

“Then if they do a live lineup, the witness tends to identify the person not from the crime, but from the six-pack. And then the witness sees the guy in the courtroom, and each time that choice gets reaffirmed. So when it comes to trial, the witness is absolutely certain that the defendant is the person they saw.”

In the Courtney case, when the victim picked him out of the photo lineup, she said she was 70 percent sure he was the rapist, according to Alissa Bjerkhoel, his Innocence Project attorney. At the trial, the victim was 100 percent certain. She said seeing him in person made her more confident.

Another witness in the case also picked Courtney out of a photo lineup. The problem with that one, Bjerkhoel said, is that the witness is Hispanic and Courtney is white. Cross-racial identifications are known from research to be problematic; people tend to see those of other races as looking alike.

David Greenberg, a San Diego chief deputy district attorney, said prosecutors are aware of the potential pitfalls with eyewitness identifications and take those into account when deciding how to handle a case. He stressed that wrongful convictions are rare.

“Even though we want to be perfect, and that is what we strive for, you’re never going to get there because we’re human,” he said. “It’s not a completely infallible system. Nobody wants to see anybody in a situation where they don’t belong.”

Pushing reforms

“Double-blind sequential” sounds like something from a science lab out at Scripps, but it’s actually a description of what reformers say is the best way to do lineups to guard against mistaken eyewitness identification.

In double-blind, the detective presenting the photos to the witness doesn’t know which one is of the suspect, so he or she can’t influence the choice. And the photos are presented one after another, not all together, to guard against the witness comparing the pictures to each other and picking the one that most resembles who they saw commit the crime.

“Those two changes make the biggest difference,” said Gerald Uelmen, a law professor at Santa Clara University and executive director of the California Commission on the Fair Administration of Justice.

Created in 2004 to address the growing number of wrongful convictions in the state, the commission reviewed studies and heard from experts on eyewitness identification before recommending adoption of double-blind sequential lineups.

Legislation to that effect was passed twice but then vetoed by former Gov. Arnold Schwarzenegger, who heeded concerns from law enforcement lobbying groups that the measures would restrict the flexibility of detectives trying to solve crimes. A new bill is pending.

Several states have adopted reforms, including Minnesota, North Carolina, Wisconsin and New Jersey. In California, Santa Clara was the first of a handful of counties to go in that direction, approving protocols for all police agencies to follow.

Jeffrey Rosen, the district attorney there, said prosecutors were convinced by research showing double-blind sequential reduces false identifications.

“We thought it would decrease the overall number of identifications, but in fact that didn’t happen,” he said. “What happened is it got a lot more accurate.”

Greenberg, of the local DA’s office, said prosecutors here leave it up to the individual law enforcement agencies to decide what kinds of lineups to use. “If we see them doing something improper, we’ll bring it to their attention, but we’re not going to tell them which way to go,” he said.

The Sheriff’s Department, which investigated the Courtney case, is taking a look at double-blind sequential. “If our review supports the use of this technique to help prevent misidentification,” said Central Investigations Lt. James Bolwerk, “we will implement it and update our policy accordingly.”

Four years ago, the San Diego Police Department was one of four agencies nationwide to participate in a field test of double-blind sequential. The results showed a decrease in the number of mistaken identifications. Investigations Capt. Terry McManus said detectives are adopting the use of sequential six-packs, but aren’t sold yet on the need to do them in a double-blind manner.

Innocence Project attorney Bjerkhoel said it’s not surprising to her that law-enforcement agencies are hesitant to embrace change. “In the majority of cases, cops are getting it right and the eyewitnesses are picking the right people,” she said. “Because these are procedures that they’ve used for a long time, and wrongful convictions are the exception to the rule, they figure the process is working good enough.”

She likened wrongful convictions to plane crashes, which are also rare. “When a plane crashes, you figure out what went wrong and you fix it and you make sure the next plane doesn’t crash,” she said. The Courtney case “should be a turning point for any of the law enforcement in San Diego to say we gotta make sure this type of plane crash doesn’t happen again.”

Original source

Why you should refuse all Field Sobriety Tests if stopped for a DUI

Posted by Steven Fabian, Sonoma County Criminal Defense Lawyer

Written by: Julia Nicole Mcilroy, Criminal Defense Attorney

So you have been set up to fail. And what does this failure do? It gives the prosecutor more evidence that you were under the influence and it only makes my job that much harder.

So don’t do the field sobriety tests. However, in California you MUST complete either a breath or blood test once you have been arrested.

If you say no, you don’t want to give a blood or breath test and then later change your mind and give it, the officer and the DMV can still say you “refused” a test and take your license for a year. Yes, a year. Even after giving your blood to them.

So again, I repeat, take a breath or blood test. I would personally take a blood test, because they are more accurate and your attorney can retest the blood if necessary. Once you take the breath test, your breath is gone and all we have is a reading from a machine.

So, in summary, if you are stopped for a DUI and the officer asks you to complete a series of FSTs, say “no thank you sir” – even if he threatens you or makes promises to you. But make sure you take a breath or blood test after you are arrested so you won’t lose your license for a minimum of one year.

Original Source

Editorial: Realignment hasn’t caused a crime wave

Posted by Steven Fabian, Sonoma County Criminal Defense Lawyer

By the Editorial Board, Sacramento Bee

What happens to offenders who finish a state prison term? Unless they have a life-without-parole sentence, they all eventually go home. They get $200 in “gate money” and have to find jobs and housing. They also are supervised for three years. Unfortunately, during that supervision period in the past, more than two-thirds ended up back in state prison, a dismal success rate.

California’s Public Safety Realignment Act of 2011 changed post-prison supervision. Under the realignment law, state parole officers continue to supervise those finishing up prison terms for a current serious, violent or sex crime. But since October 2011, counties have supervised the rest through their probation departments.

So is the new post-prison supervision system doing any better in breaking the cycle of recidivism?

The California Department of Corrections and Rehabilitation has just released its first report comparing the rates of arrest, conviction and returns to state prison for those who completed their state prison term in the first six months of realignment with those released one year earlier.

The early good news is that California is not undergoing some new massive crime wave because of the change in who supervises offenders finishing their prison terms. Now the overriding issue for counties and the state should be how to reduce recidivism rates.

In the first six months of realignment, arrest rates are down slightly from the pre-realignment period and conviction rates are slightly up, as expected. The realignment law virtually eliminated administrative returns to state prison for those who violated parole (such as by failing a drug test or missing an appointment), which had been a major cause of prison overcrowding. Now that counties have to deal with parole violators, they are more likely to charge and prosecute those who commit crimes. That’s a good thing, showing that realignment is working as intended.

In the first six months of realignment, of those who had finished their prison terms, 59 percent had been arrested within their first year out and 23 percent were convicted of new crimes. Pre-realignment, 62 percent were arrested within their first year out and 21 percent were convicted of new crimes. So far, realignment has changed very little – resulting neither in a crime wave nor a major reduction in crime.

Over time, however, realignment should improve the recidivism picture.

The report points to the key driver of reoffense rates, something everyone in the law enforcement community has known for a long, long time: The most common arrests and convictions for people returning home after serving time in prison are for drug and property crimes. Those who have a drug habit are less employable and they resort to property crime to feed their addiction.

The takeaway from the CDCR report should be that the public and leaders at all levels of government should get past doomsday rhetoric about realignment and work with counties to attack the link between drugs and crime. Simply jailing these folks, over and over and over again, will not solve the problem.

READ THE REPORT ONLINE: Realignment Report: A One-Year Examination of Offenders Released From State Prison…

Original Source

Maryland Becomes 18th State to Replace the Death Penalty

Posted by Steven Fabian, Sonoma County Criminal Defense Lawyer

Maryland governor signs death penalty repeal

By Joe Sutton, CNN

Thu May 2, 2013

Maryland’s governor signed a bill Thursday repealing the death penalty.

The legislation goes into effect October 1.

In those cases in which the state has filed a notice to seek a death sentence, “the notice shall be considered withdrawn and it shall be considered a notice to seek a sentence of life imprisonment without the possibility of parole under specified circumstances,” according to a press release from the office of Gov. Martin O’Malley .

O’Malley’s office said Maryland is the 18th state to repeal the death penalty,

“Maryland has effectively eliminated a policy that is proven not to work. Evidence shows that the death penalty is not a deterrent, it cannot be administered without racial bias, and it costs three times as much as life in prison without parole,” the office said in a statement.

“Furthermore, there is no way to reverse a mistake if an innocent person is put to death. Working together with law enforcement partners, Maryland has driven down violent crime and homicides to three decade lows.”

Five men currently are on Maryland’s death row, and O’Malley so far has not commuted their sentences.

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Supreme Court Makes the Right Call: “Social Sharing” of Marijuana Not an Aggravated Felony Under Immigration Laws

Posted by Steven Fabian, Sonoma County Criminal Defense Lawyer

From ACLU – American Civil Liberties Union Blog of Rights

By Molly Lauterback, Immigrants’ Rights Project & Rebecca McCray, ACLU Criminal Law Reform Project

In a 7-2 decision this week, the U.S. Supreme Court held that the “social sharing of a small amount of marijuana” does not constitute an “aggravated felony” under our immigration laws. Although this sounds like a technical issue, the practical impact of this decision is huge. And although the term sounds ominous, this broad category covers crimes that are neither “aggravated” nor a “felony” under our criminal laws, including many misdemeanors. Aside from some extremely rare exceptions, immigrants deported on this basis are denied the opportunity to have a judge even consider their individual circumstances. Instead, they are banished for life, no matter what.

The case—Moncrieffe v. Holder—is a compelling example of the potentially harsh and disproportionate consequences of this legal regime. Adrian Moncrieffe is a longtime green card holder from Jamaica who came to America nearly 30 years ago, when he was a three-year-old boy. In 2007, police in Georgia found the equivalent of about two or three marijuana cigarettes in his car during a traffic stop. Moncrieffe pled guilty to possession of marijuana with intent to distribute and received five years of probation and no jail time.

For most people, this could have been the end of the story; for Moncrieffe, this minor offense almost caused his banishment. Acting under its overbroad definition of aggravated felonies, the government charged Moncrieffe with deportation, and the lower courts upheld his deportation on this basis. As a result, at no point could a judge even look at Moncrieffe as an individual and weigh the common-sense factors that tell you whether someone should be allowed to stay in the country, or should be booted out—for example, whether the person has lived in the country his whole life, if he has family here, whether he is a primary breadwinner; whether he has served in the military; and so on.

Fortunately for Moncrieffe, the Supreme Court held that his minor possession offense did not count as an aggravated felony because the offense did not involve either remuneration or more than a small amount of marijuana. Despite this victory, thousands of other longtime green card holders still face mandatory and lifetime banishment for crimes that in no way warrant such extreme consequences.

This draconian deportation regime is fundamentally out of step with vital American values. Given the harsh penalty of deportation, judges should have the discretion to do justice in individual cases and consider whether someone should be banished or allowed to stay. Indeed, eight in ten Americans agree that no one should be deported without a judge being able to evaluate the circumstances of his or her case. And letting judges do justice does not exempt immigrants from possible deportation. As the Court explained, “escaping aggravated felony treatment does not mean escaping deportation…It means only avoiding mandatory removal.”

Moncrieffe’s narrowly avoided fate also echoes the many other experiences of excessively harsh, life-altering penalties associated with marijuana use and possession suffered by immigrants and non-immigrants alike. Across the country, Americans with two prior felony drug convictions face a mandatory life sentence if convicted of a third drug-related felony —even if that offense involved the sale of a substance as innocuous as marijuana. But the good news is that the Court is not alone in concluding that minor marijuana possession doesn’t justify a punishment as extreme as mandatory deportation.

Indeed, a majority of the American public are ready to fully legalize marijuana possession for adults, and no longer believe possessing marijuana should be a criminal offense at all. Public support for progressive marijuana reform has reached a tipping point: Last year Colorado and Washington became the first states to pass tax and regulate laws and many other states have introduced legislation that steadily chips away at excessively severe marijuana penalties. Thus, the Court’s decision isn’t just good law—it’s good policy that fairly reflects a new majority consensus supporting common sense marijuana reform for everyone in this country.

Right now Congress is engaged in a heated debate on comprehensive immigration reform. Although aspects of the proposed reforms are promising, the current Gang of Eight bill does little to address the problem of mandatory deportation without individual review. The ACLU believes that, in all cases, a judge, rather than a mandatory statute, should decide whether someone should be allowed to stay here or be deported from the country. In this respect, the Court’s decision is a promising step toward the fair, humane immigration reform we urge Congress to embrace.

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