The United States Supreme Court is deciding whether to hear a case where the prosecution is arguing – Brady evidence is not required to be disclosed before a preliminary hearing.
The cases is: California v. Gutierrez
Does the due process obligation, outlined in Brady v. Maryland, require prosecutors to provide exculpatory evidence to a defendant before a preliminary hearing at which a magistrate determines whether sufficient cause exists to require the defendant to stand trial?
May a state permit a defendant to move for pre-trial dismissal, pursuant to Brady v. Maryland, 373 U.S. 83 (1963), upon learning that the prosecution failed to disclose material exculpatory information in its possession at the time of the preliminary hearing?
CLAIMS & FACTS
• Gutierrez is charged with molesting his two foster daughters.
• The Prosecution fails to turn over evidence that one of the foster children had twice made false claims about her mother’s boyfriend assaulting her.
• Subsequently, the defense discovers police reports about the previous false claims;
• Lower court dismisses the case based on prosecutorial misconduct.
• The First District Court of Appeal in California upholds the lower court’s dismissal.
• A three-judge panel unanimously ruled that the state’s obligation to disclose exculpatory evidence to criminal defendants under Brady v. Maryland (1963) applies not just trials but also to preliminary hearings. The California Supreme Court denied review.
UNITED STATES SUPREME COURT
Sep 16 2013 – Petition for a writ of certiorari filed.
Oct 17 2013 – Brief of respondent Gutierrez in opposition filed.
Oct 17 2013 – Brief amicus curiae of Jackie Lacey, District Attorney for the County of Los Angeles filed.
Oct 18 2013 – Brief amicus curiae of California District Attorneys Association filed.
Oct 31 2013 – Reply of petitioner California filed.
Nov 4 2013 – DISTRIBUTED for Conference of November 26, 2013.
A decision from the Supreme Court on whether to hear the case should come soon.
Real justice means everyone accused of a crime gets a fair process to defend against the accusations. In many cases due process happens. Our system of justice, however, requires that occurs in all cases. This isn’t exactly an onerous requirement. It starts with the truth.
The truth means…
…the whole truth, not a half-truth. A half-truth is a type of lie. A half-truth can make something that is merely a belief appear to be knowledge. A half-truth is a deceptive statement that contains an element of truth. The fallacy uses a kernel of truth in the statement, as support to deceive the recipient into believing the entire statement is true. Half-truths are difficult to detect because they are wrapped in the appearance of believability.
As one court aptly stated:
“[s]quarely false statements are not the problem. They are easily and effectively eliminated from the case law. The more elusive, and therefore more tenacious, culprit is the half-truth. Glenn v. State, 68 Md. App. 379, 381-82, 511 A.2d 1110, 1112 (1986).
The half-truth is most dangerous…
…in criminal prosecutions. The primary safeguard used to help ensure that someone gets due progress is the holding of Brady v. Maryland. Because of Brady, the law requires the prosecution to disclose any evidence that shows a person accused of a crime is actually innocent.
Brady is meant to prevent the half-truth deception. For example, when someone is charged with aiding in a murder by providing a gun to the killer, an eyewitness saying the accused was at the scene carrying a gun is damming evidence. However, are there any other facts that might make you question whether he actually committed the crime?
- How about if the witness was on felony probation?
- How about the fact he was on probation for robbery?
- How about if the witness had a motive to lie?
Here, the half-truth is the witness’s statement about the accused being at the scene while carrying the gun. However, revealing the other half of the truth tells a much different story. Providing only a half-truth means the accused received process. Providing the whole truth means they received due process.
Think the above scenario is far fetched: read this decision from the 9th Circuit that was issued a few days ago.
By Yvonne Wingett Sanchez and Mary K. Reinhart
The Republic | azcentral.com
Days after a scathing report accused her of violating multiple state laws and rules, a divided Arizona Medical Board on Saturday fired longtime Executive Director Lisa Wynn during a hastily called special meeting.
That meeting came after Wynn refused to step down.
Board Chairman Gordi Khera called Wynn on Friday and asked for her resignation at about the same time board staff posted the unusual Saturday meeting to discuss her performance.
The board voted 5-4 to fire her; two members of the 12-member board were absent for unknown reasons, and one seat is vacant. Phoenix attorney Tim Nelson, who represented Wynn at the hearing, said that public safety has never been jeopardized, that the report did not prove the public was at risk and that Wynn was acting in the best interests of the agency.
Read the entire article here: http://azc.cc/A2c4g
Six days before his trial, Defendant moved for a continuance in order to substitute new counsel. Defendant stated:
- He had concerns with “his current attorney’s defense strategies and trial presentation;”
- He also explained to the trial court he was uncomfortable with the firm he originally had hired after being transferred between attorneys several times;
- He did not have the funds to retain new counsel until recently, and he had already paid a substantial consulting fee to the new attorney.
The court denied his motion. After a jury trial, he was convicted of Aggravated DUI. On appeal, he argued the trial court erred by denying his motion to continue in order to substitute his counsel, thus denying him the right to counsel of his choosing.
The Trial Court Ruling
The trial court reasoned that “[t]here has been extensive litigation in this case, and, considering the age of the case and the activity in the case, the motion will be denied.” The court also noted its concerns that substitute counsel would not be ready by the scheduled trial date, as required by Rule 6.3(c), Ariz. R. Crim. P. However, the court did not articulate this concern as a basis for its final ruling.
The Appellate Court Ruling
The Court of Appeals reversed the conviction concluding:
The trial court erred by focusing solely on its own schedule and not giving due regard to Kennedy’s request to exercise his right to counsel of his choosing. See Aragon, 221 Ariz. 88, ¶ 9, 210 P.3d at 1262. The court’s ruling thus constituted “an ‘unreasoning and arbitrary’ adherence to its schedule.” Id.; Morris, 461 U.S. at 11–12. Because the “erroneous deprivation of the right to counsel of choice, ‘with consequences that are necessarily unquantifiable and indeterminate, unquestionably qualifies as structural error,’ “ we must vacate Kennedy’s conviction and sentence. See Gonzalez–Lopez, 548 U.S. at 150, 152, quoting Sullivan v. Louisiana, 508 U.S. 275, 282 (1993); Aragon, 221 Ariz. 88, ¶ 9, 210 P.3d at 1262.
The conviction was vacated and a new trial was granted.
Here are the latest posts from my DUI Blog:
A Reported Result vs. A Complete Result
In DUI cases, a machine called a gas chromatograph is often used to measure an alcohol concentration in a blood sample. The measurement, which the machine prints at the end of the process, is called a reported result. We are finally at the point in Arizona, where courts are starting to recognize that merely providing a reported result is not sufficient evidence. The law is coming to the same realization that science did many years ago: a reported result from a machine is an incomplete measurement…Read the entire post HERE.
Scottsdale DUI Blood Tests Ruled Unreliable
In July of 2012, I asked a member of the Scottsdale Crime Lab for an interview about some rumors. She refused and told me to get a court order. At that time I was surprised. Why would she refuse to do a routine interview?
Today we know the answer…Read the entire post HERE.
From The New York Times: “To Judge Sleep Aids, U.S. Looks at Drowsy Driving in the Morning.”
The Food and Drug Administration is considering the residual drowsiness that can persist the day after taking prescription sleep aids, and whether users can drive safely upon waking.
Click here to read the story: http://nyti.ms/16JxvIK
New Times: Bill Montgomery Opposes Ethics Rule Requiring Prosecutors to Reveal Evidence of Wrongful Convictions
Stephen Lemons | New Times
As Maricopa County Attorney Bill Montgomery fights to keep Debra Milke behind bars pending a retrial on her overturned murder conviction, he also is fighting a proposed rule to the State Bar of Arizona that would require prosecutors to act on new evidence of a wrongful conviction.
For the past two years, the Arizona Justice Project has petitioned the Arizona Supreme Court to change the State Bar of Arizona’s ethics rules, adding a provision based on the American Bar Association’s Ethical Rule 3.8.
The ABA’s rule states that if a prosecutor discovers “new, credible, and material evidence” of a wrongful conviction, he or she must disclose the evidence to the defendant and “undertake further investigation or make reasonable efforts to cause an investigation, to determine whether the defendant was convicted of an offense that the defendant did not commit.”
Read the rest of the article here: http://tinyurl.com/kk4dxmp
Here is latest news article on the Milke case. It discusses the potential conflict of interest issues with the Maricopa County Attorney’s Office (MCAO) prosecuting her case after the 9th Circuit Court of Appeals reversed her conviction. The court’s ruling was based upon MCAO’s prior violation of their duty to disclose exculpatory evidence pursuant to Brady v. Maryland.
Anna Edney | Bloomberg News as reported in the Arizona Republic
An Arizona woman awaiting retrial on charges she had a part in the murder of her 4-year-old son in 1989 asked a court Wednesday to disqualify the Maricopa County Attorney’s Office from prosecuting the case.
A 14-page motion filed by Debra Jean Milke’s attorneys said the county attorney’s office shouldn’t be allowed to prosecute the retrial “based on the conflict of interest created by their own misconduct” and “the significant political, public and financial interest they have in the outcome.”
Milke, 49, was convicted in 1990 and sentenced to death for sending her young son off to visit a mall Santa Claus with two men who fatally shot the boy in the desert.
A panel of the 9th U.S. Circuit Court of Appeals threw out Milke’s conviction on March 14, concluding that prosecutors hadn’t turned over evidence of the history of misconduct by a detective who testified at her trial that she had confessed to him in a closed interrogation room.
Milke has always maintained her innocence. A Sept. 30 retrial has been set, and prosecutors are again seeking the death penalty.
A hearing was scheduled Thursday on whether Milke can be released on bond as she awaits her retrial.
Prosecutors adamantly oppose her release and argue that she isn’t entitled to bail.
Defense attorneys said Milke should be released because the evidence against her is weak and cite the federal appeals court ruling that threw out her conviction and death sentence.
They also said Milke wants to visit her terminally ill mother, who’s been battling cancer for more than three years.
Prosecutors claimed Milke had her son killed to collect on a $5,000 insurance policy.
Milke’s roommate, James Lynn Styers, and his friend Roger Mark Scott are on death row for carrying out the killing. Authorities say Milke’s motive was that she didn’t want the child anymore and didn’t want him to live with his father.
Milke’s lawyers also are planning to ask the judge in the coming weeks to throw out Detective Armando Saldate Jr.’s claim that Milke confessed to the killing. An Aug. 30 hearing has been set to consider the request to suppress the detective’s claim.
It’s unknown whether prosecutors will call Saldate as a witness or whether Styers and Scott will testify after declining to do so at Milke’s first trial.
Here is an update of the Massachusetts Crime Lab Scandal:
• In June, 2011, allegations of misconduct at the William A. Hinton State Laboratory Institute in Jamaica Plain (Hinton drug lab) surfaced regarding work performed by Annie Dookhan, a chemist who had been employed in the forensic drug laboratory since November 2003.
• Following an internal review, the Department of Public Health launched a formal investigation of the matter in December, 2011. The investigation concluded that “Dookhan failed to follow [Hinton drug l]ab protocols for the transfer and documentation of samples for testing, and subsequently created a false record of said transfers.”
• After being placed on paid administrative leave, Dookhan resigned from her position, effective March 9, 2012.
• A more extensive investigation of the Hinton drug lab was initiated in August, 2012, by the State police. As a result of this investigation, it has been alleged that, among other things, Dookhan deliberately and repeatedly falsified drug testing results, tampered with evidence, and forged signatures on documents.
• Although the full scope of Dookhan’s purported misconduct is not yet known, it has been estimated conservatively that, during her tenure, Dookhan worked on at least 34,000 cases. The investigation of misconduct at the Hinton drug lab remains ongoing.
Read the latest ruling by clicking here: http://tinyurl.com/knuc29g
I have seen jury consultant Robert Hirschhorn lecture several times (and stolen lots of his material for my own cases.) When It was revealed he worked on the Zimmerman case, I immediately understood how the defense overcame the “knock knock” joke in opening statements. Here is an article from USA Today explaining some of the jury selection strategies Hirschhorn used.
SANFORD, Fla. — One of the people instrumental in helping George Zimmerman’s defense team pick an all-female jury says that he decided months in advance that a panel of women brought the best chance for acquittal.
Robert Hirschhorn, a jury consultant with more than 28 years experience, told USA TODAY that women are better listeners, less judgmental, and would more easily understand the fear Zimmerman felt when he shot Trayvon Martin.
“I wanted to make sure we were going to get jurors that would follow what the court of law required not what the court of public opinion wanted,” Hirschhorn said. “My number one goal was to get fair jurors that would really be able to listen to the evidence and decide the case on facts and law not emotion.”
Read the the full article here:
Arizona Criminal Defense Lawyer Blog
The Arizona Criminal Defense Lawyer Blog is published by the Attorneys at the Koplow Law Firm. Our criminal practice experience includes a wide variety of defense representation and cases; and is led by Lawrence Koplow, a former prosecutor with the Maricopa County Attorney's Office.
Call the Koplow Law Firm at (602) 494-3444 for a consultation, or use the form below:
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