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Ambien & Driving Makes The Front Cover of The New York Times

August 14th, 2013 Comments Off on Ambien & Driving Makes The Front Cover of The New York Times

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:

Categories: Drug Charges, DUI

New Times: Bill Montgomery Opposes Ethics Rule Requiring Prosecutors to Reveal Evidence of Wrongful Convictions

August 8th, 2013 Comments Off on 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:

Milke Wants MCAO Conflicted Off The Case

August 1st, 2013 Comments Off on Milke Wants MCAO Conflicted Off The Case

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.

The Latest Ruling In the Massachusetts Crime Lab Scandal

July 28th, 2013 Comments Off on The Latest Ruling In the Massachusetts Crime Lab Scandal

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:

Zimmerman Verdict: A Behind The Scenes Fact

July 20th, 2013 Comments Off on Zimmerman Verdict: A Behind The Scenes Fact

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:

The Milke Case Moves Forward

July 9th, 2013 Comments Off on The Milke Case Moves Forward

Yesterday I included the Milke case as one of my favorite Brady decisions. For the non-lawyers, Brady refers to the U.S. Supreme Court case of Brady v. Maryland which held that when the government withholds exculpatory evidence it is a violation of due process “where the evidence is material either to guilt or to punishment.”

Think of it this way, you are charged with a crime and there is evidence that you may actually be innocent. The police, or the prosecutor, have evidence that helps you show you are not guilty. The Brady case, and a long list of subsequent cases, hold that if the State does not turn over this evidence it is a violation of your right Due Process rights.

It was just announced the State of Arizona will attempt to convict Ms. Milke despite what we have now learned about the State’s evidence. Read the Arizona Republic’s Michael Kiefer’s article for the latest update:

Seven Brady Cases You Should Know

July 8th, 2013 Comments Off on Seven Brady Cases You Should Know

Here are my seven favorite Brady decisions:

1. BRADY V. MARYLAND, 373 U.S.83 (1963)

Both Brady and his co-defendant were found guilty of first-degree murder and sentenced to death. After trial, the prosecutor disclosed to Brady that the co-defendant admitted to the homicide. The court held that the prosecutor’s suppression of the confession violated the Due Process Clause of the 14th Amendment. Accordingly, the prosecutor must disclose to the defendant all material evidence that is exculpatory.

What is material? Anything that has a bearing on guilt or innocence or on sentencing. This disclosure is required irrespective of the good or bad faith of the prosecutor.

2. GIGLIO V. UNITED STATES, 405 U.S. 150 (1972)

A key witness against Petitioner testified at trial that he had not received a promise for leniency from the state in return for his testimony. The defense cross-examined the witness about any promises of leniency. The witness denied that he was given any promises of leniency or promises not to be prosecuted.

The prosecutor who had presented the case to the grand jury had given the witness a promise of immunity. He signed an affidavit stating that he did not prosecute the witness because he had given the witness immunity. However, the prosecutor trying the case signed an affidavit stating that the witness had not been prosecuted for different reasons.

Defendant was convicted of forging money orders. While the appeal was pending, defendant discovered new evidence that government failed to disclose. That is, that the government’s key witness was given a promise not to be prosecuted in return for his testimony. The key witness was the defendant’s alleged coconspirator and the only witness linking the defendant to the crime.

The Supreme Court held that the prosecution was obligated to disclose to the defense any promise or expectation of leniency it offered to a witness. It clarified that the state’s Brady obligation extends to all prosecutors in the office, and that it is up to such offices to create systems to ensure that such information is disclosed. Further, the Court clarified that impeachment evidence – evidence affecting the credibility of a witness – is Brady material and must be disclosed.

The big take away: When the reliability of a given witness may determine guilt or innocence, the prosecutor must disclose evidence affecting the credibility of that witness.

3. UNITED STATES v. AGURS, 427 U.S. 97 (1976)

The Petitioner was convicted of murder after a trial in which he argued he had acted in self-defense. Subsequently petitioner sought a new trial because the state had failed to disclose the victim’s criminal record. The U.S. Supreme Court held that there was little difference between a general request by defense counsel for Brady material and the absence of a request altogether, and it found that prosecutors are obligated to turn over exculpatory evidence whether or not defense counsel asks for it.

4. STATE v. JONES, 120 Ariz. 556, 587 P.2d 742 (1978)

The Arizona Supreme Court issued sanctions against the Office of the Maricopa County Attorney for failing to turn over potential exculpatory evidence to defense attorneys in violation of Brady v. Maryland and Rule 15.1. The Court ordered dismissal of two affected counts with prejudice (at the appeal stage) because of he discovery violation.

The ordered retrial on those two counts was quashed. The Court admonished the prosecutors, “If you are in doubt as to whether or not a defendant knows of certain exculpatory evidence already known to the State, reveal it.” It referenced possible ethical violations for the State’s failure to disclose exculpatory evidence.” Moreover, the also stated that Rule 15.1, is an expression of due process. State v. Jones, 120 Ariz. 556, 560, 587 P.2d 742, 746 (1978).

5. KYLES v. WHITLEY, 514 U.S. 419, 437 (1995)

In Kyles, the United States Supreme Court reversed a murder conviction upon discovering that the state had withheld evidence in violation of Brady. The evidence withheld by the state included, among other things, inconsistent eyewitness statements and inconsistent statements made by an “associate” of the defendant who allegedly had knowledge of the crime and access to the location where items taken from the victim were found. The Court held that the disclosure of the withheld evidence undermined confidence in the outcome of the trial and therefore made a different result reasonably probable.

In reaching this determination, the Court found that the withheld evidence would have “raised opportunities to attack not only the probative value of crucial physical evidence and the circumstances in which it was found, but the thoroughness and even the good faith of the investigation.” The Court also stated that the evidence withheld denied the defense the ability to “undermine the ostensible integrity of the [police] investigation” and “[lay] the foundation for a vigorous argument that the police had been guilty of negligence.”

Ultimately, the Supreme Court stated that: “[t]he question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence. A “reasonable probability” of a different result is accordingly shown when the government’s evidentiary suppression “undermines confidence in the outcome of the trial.”

The big take away: “The individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government’s behalf in the case, including the police.” Kyles v. Whitley, 514 U.S. 419, 437 (1995)

6. COLORADO v. CORSON, 2013 COA 4. No. 11CA0241.

Defendant David Corson appealed the district court’s order denying his motion for post-conviction relief, which alleged that the nondisclosure of the complaining witness’s juvenile adjudications rendered his plea invalid and his counsel ineffective. The order was reversed and the case was remanded.

In 2001, Corson worked as a substance abuse counselor at a juvenile facility. K.B., a 17-year-old resident of the facility, alleged that Corson and she had engaged in a sexual relationship while she resided at the facility. After Corson pleaded guilty to sexual assault on a child by one in a position of trust, which was made in exchange for dismissal of the pattern of abuse count, Corson discovered evidence showing K.B. had previously made false allegations of sexual assault and had resulting juvenile adjudications for false reporting that the prosecution had not disclosed to the defense.

The Brady Issue: Corson contended that the district court erred in denying his motion, asserting that his guilty plea was unintelligent and involuntary because (1) the prosecution failed to comply with its discovery obligations, and (2) the prosecution made an affirmative misrepresentation regarding the existence of exculpatory evidence that induced this plea. Corson also contended that the prosecution’s nondisclosure of exculpatory evidence and its affirmative misrepresentation concerning its existence caused defense counsel to erroneously assess the case, rendering counsel ineffective.

“Corson also filed a discovery motion that requested K.B.’s medical and treatment records and alerted the prosecution that, “based on information and belief, [K.B.] has a reputation for making untruthful statements as well as having a past criminal history.” The prosecution’s response stated that “[the prosecution] ha[d] provided all information pertaining to the victim, which [was] in the possession of the Office of the District Attorney” and characterized the request as “nothing more than a fishing expedition.” The court never ruled on Corson’s discovery motions.”

The court found the prosecution did not merely decline to turn over information, but it made an affirmative representation that it had no discoverable evidence. Nothing in the law requires defendants to “scavenge for hints of undisclosed Brady material when the prosecution represents that all such material has been disclosed.” “A rule declaring ‘prosecutor may hide, defendant must seek,’ is not tenable in a system constitutionally bound to accord defendants due process.”

7. MILKE v. RYAN, 711 F.3d 998 (9th Cir. 2013).

This case went all the way through the Arizona State Court System and the conviction was only reversed after it traveled by Habeas Corpus into the 9th Circuit. Debra Milke was convicted of murder, conspiracy to commit murder, child abuse and kidnapping of her 4-year-old son and sentenced to death. The jury convicted Milke primarily based on the testimony of the detective who allegedly took her confession. The detective had a well-documented history of misconduct and resulting disciplinary action. Milke petition for habeas corpus was denied by the district court.

Milke appealed, arguing that the failure of the prosecution to turn over evidence of the officer’s previous Brady violates violated one of the elements of fairness under Brady v. Maryland and Giglio v. United States, which “is the prosecution’s obligation to turn over exculpatory evidence.” The Ninth Circuit agreed and held that the state had acted contrary to the established precedent when it failed to disclose information regarding the history of misconduct of one of the state’s key witnesses, without which the jury could not return a fair conviction.

Knock knocking your way to a guilty verdict

June 25th, 2013 Comments Off on Knock knocking your way to a guilty verdict

“Knock, knock.”

“Who’s there?” says George Zimmerman.

Answer – a guilty verdict.

Arizona Case Law Update – The First Daubert Decision

February 21st, 2013 1 Comment »

ASH v. K
This month the Arizona Court of Appeals rejected the argument that a judge does not have the discretion to hold a pretrial hearing on the reliability of scientific evidence. Since January 1, 2012 when Arizona adopted the Federal Daubert standard for safeguarding against junk science, several prosecutorial agencies have tried to persuade trial courts that things were “business as usual” despite the new rules of evidence.

However, the February 5, 2013 ruling from Division One of the Arizona Court of Appeals in Arizona State Hospital v. Klein, simply affirms the obvious: the trial court is a gatekeeper of evidence. The jury is only supposed to see evidence that was the product of actual science. This ruling is likely just the first of several forthcoming decisions that will define how Arizona will apply the Daubert standard for reliability of scientific evidence.

To read the case click here

A Quick And Dirty Daubert Explanation

August 15th, 2012 Comments Off on A Quick And Dirty Daubert Explanation
Daubert Challenges of Experts

Daubert Challenges of Experts

Daubert is the name of an United States Supreme Court case regarding the admissibility of scientific evidence: Daubert v. Merrell Dow Pharmaceuticals, Inc.  While the case was decided in 1993, it’s holdings are new to Arizona.  Despite some arguments to the contrary by a few luddites, Arizona adopted it on January 1, 2012.  Arizona’s change to a Daubert standard for challenging scientific evidence may be the most significant event our court have ever encountered.  Currently, there are 31 other states that have adopted the Daubert standard.

At its core, the Daubert standard is the United States Supreme Court’s interpretation of Rule 702 of the Federal Rules of Evidence for expert testimony.  When Arizona amended its companion Rule to essentially conform with the Federal version, Daubert became the guiding case for Arizona courts to rely upon for decisions on the admissibility of scientific evidence.  As with all legal rulings, there are hundreds of subsequent court interpretations of Daubert, by hundreds of other courts, each providing their own view of what Daubert means in a given set of facts.

What Does Daubert Do?

The Daubert decision created criteria for trial judges to use when determining the admissibility of an expert witnesses’ testimony.  The standard requires a judge to “vet” an expert’s scientific testimony before it is presented to a jury.  A so called expert’s opinion must be the product of a scientific methodology to be admissible.

  • For a more in depth Daubert discussion you can click here.

What Did Daubert Change In  Arizona?

Prior to January 1, 2012 many Arizona courts would allow an expert to tell a jury an opinion as long as they also said the magic words – my opinion is “generally accepted” in the scientific community.  Without a judge screening the way the expert came to her conclusion (i.e. whether the conclusion actually the product of reliable science) juries have been unknowingly and repeatedly subjected to junk science.  The only effective safeguards were hopefully, the defense attorney was skilled enough to reveal the opinions were lacking scientific validity; And the accused had the funds to hire their own expert.  Both of the circumstances are unlikely for most cases.

In light of the above, is it really so surprising that just about every month you see another news story about a person who was wrongfully convicted at trial based on a so called expert testimony, and now they have been exonerated by advancements in DNA testing?

Why Do We Care?

Daubert challenges are the primary defense against:

  • The Crime Laboratory person that thinks everyone is guilty so why bother to take the time to do the test correctly;
  • The “hired gun” expert;
  • The person who truly believes they are an expert but are incompetent;

Police crime laboratories have been the primary culprits of presenting junk science to juries.  Skeptical of this statement?  Think this opinion may not be the product of a reliable methodology?  Well, then read the 2009 Report on Forensic Science delivered to the United States Congress by the National Academy of Science.  The Report chronicles the epidemic of police crime labs presenting misleading testimony and scientifically unreliable conclusions.

We care that Daubert has come to Arizona because the standards set forth by the Supreme Court for vetting scientific evidence are meant to prevent exactly what many crime labs have been doing for years – providing juries with opinions and test results that are not the product of real science.

Arizona Criminal Defense Lawyer Blog

The Arizona Criminal Defense Lawyer Blog is published by 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.

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