Falsely Imprisoned Individuals Have Right to Sue Cops for Withholding Exculpatory EvidencePosted on: February 8, 2009 at 5:51 p.m.Corrupt L.A. police officers must now contend with being civilly sued for false accusations. Often the Los Angels District Attorneyinvestigated dirty officers. However, the Officeonly files criminal charges when there is evidence to prove the misconduct beyond a reasonable doubt. The civil suit has a lower proof standard and is another avenue for the falsely accused to hold corrupt officers responsible. Recently the 9th Circuit Court ofAppeal held thattwo men exonerated of murder after 13 years in prison can proceed with a civil rights action alleging two San Francisco Police Department homicide inspectors withheld exculpatory evidence and manufactured and presented perjured testimony. Explaining that the officers violated a duty to tell prosecutors about a witness statement incriminating others in the murder, as well as another individuals taped confession to the crime, the Court of Appeal rejected the officers' claim that they are ummune from being sued. John Tennison and Antoine Sodapop Goff were convicted of the August 1989 murder of Roderick Shannon, 18. Prosecutors said Goff, aided by Tennison, shot and killed the victim in retaliation for an earlier drive-by shooting that was part of an ongoing battle between gangs from the Sunnydale section of San Francisco, where Shannon lived, and the Hunters Point area. The prosecution charged that Tennison, Goff and others chased Shannon and caught him as he tried to climb a fence, then pulled him back into a parking lot where Tennison held him while Goff killed him with a blast from a shotgun. Two girlsMasina Fauolo, 11, and friend Pauline Maluina, 14identified Tennison at trial, saying they had followed the chase because one of them was a friend of Shannon. Both men were convicted of first degree murder. Tennison later moved for a new trial on the ground that another man, Lovinsky Ricard, had confessed to being the shooter and had said that Tennison was not present. The motion was denied on the ground that the confession was unreliable and that Ricard who recanted his statement after the motion for new trial was deniedcould have been called as a witness at trial. However, in 2003 Wilken overturned the conviction on the ground that prosecutors had suppressed Brady material, including evidence that officers had received money to distribute to witnesses, but could not explain who had gotten it, and that one of the identification witnesses had taken an inconclusive polygraph test. Wilkens order was also based on the grounds that a woman named Chante Smith had given a videotaped interview saying that Ricard was the shooter and identifying others she claimed were present, but inspectors Prentice Sanders and Napoleon Hendrix had merely placed the statement in their file rather than turn it over to prosecutors, and that Ricard had confessed months before the prosecution turned the videotape of his statement over to the defense. Prosecutors later dropped the case rather than retry it, and when Tennison moved for a declaration of factual innocence, the district attorney responded: The People concur that Petitioner is factually innocent pursuant to Penal Code section 851.8. Tennison and Goff then brought suit under 42 U.S.C. 1983 against the inspectors for allegedly withholding material, exculpatory evidence, who in turn moved for summary judgment asserting absolute and qualified immunity, but Wilken rejected the inspectors argument that the plaintiffs needed to establish that the inspectors acted in bad faith in withholding the confession.The appears court rejected the inspectors argument that the duty to disclose exculpatory evidence applied only to prosecutors and not police officers, and agreed with Wilken that Tennison and Goff did not need to show bad faith to establish Sec. 1983 liability. The Inspectors received a Mirandized confession by someone who had been named by a reliable witness, known to the officers, who recounted events surrounding the murder in detail, and whose account contradicted that of the prosecutions witnesses, he wrote. The evidence certainly undermines confidence in the outcome of the trial. Tagged as: police misconduct Los Angeles Criminal Defense: Independent DNA Testing Before Jury TrialPosted on: February 8, 2009 at 3:39 p.m.Aggressive work by L.A. criminal defense lawyers is needed in every single case. In Los Angeles, the prosecution relies heavily on DNA evidence and testimony to support charges of murder, rape, domestic violence, and burglary. This DNA evidence may be faulty, and thus an aggressive defense approach to challenging it is required. Our Los Angeles criminal defense law firm employs an independent DNA facility to re-examine and evaluate the prosecutor's results, BEFORE the case goes to the jury. Often, without an independent critical analysis of DNA evidence, the wrong person may end up in prison for a crime he or she did not commut. A recent review of DNA testing in the United States revealed what most criminal defense attorneys fear the most - improper scientific protocol being used by the police, leading to the conviction and imprisonment of innocent people. Both American and British authorities are relying more and more on DNA evidence, but insufficient safeguards are in place. Criminal defense attorneys mustlitigate DNA evidencein court, to prevent a rush to judgement about a client's guilt -and must insist that the evidence has been independently reviewed by another testing facility beforehand. Further, there is no way to determine whether the specimen in trial (cigarette butt, clothing, weapons, or other physical evidence recovered by police) was somehow tainted with the Defendant's DNA by testing facility. The question becomes at trial - did the police have the Defendant's DNA nearby for another reason ( a prior DNA sample pursuant to an arrest), when it came in contact with physical evidence recovered by the police. In 2004, a New Jersey prosecutor announced that DNA had solved the mystery of who killed Jane Durrua, an eighth-grader who was raped, beaten and strangled 36 years earlier."Through DNA, we put a face to the killer of Jane Durrua, and that face belongs to Jerry Bellamy," prosecutor John Kaye said. The killer, however, turned out to be someone else.Two years after Bellamy's arrest, investigators discovered that evidence from the murder scene had been contaminated by DNA from Bellamy, whose genetic sample was being tested at the same lab in an unrelated case. He was freed. Another man ultimately was arrested in the killing but died before trial.DNA has proved itself by far the most effective and reliable forensic science. Over the last two decades, it has solved crimes once thought unsolvable, brought elusive murderers and rapists to justice years after their misdeeds and exonerated the innocent. In courtrooms and in the popular imagination, it is often seen as unassailable. But as the nation rushes to take advantage of DNA's powers, it is becoming clear that genetic sleuthing also has significant limitations: * Although best known for clearing the wrongfully convicted, DNA evidence has on occasion linked innocent people to crimes. In the lab, it can be contaminated or mislabeled; samples can be switched. In the courtroom, its significance has often been overstated by lawyers or misunderstood by jurors. * The rush to collect DNA and build databases has in some cases overwhelmed the ability of investigators to process the evidence and follow up on promising leads. Some crime labs have huge backlogs of untested evidence, including thousands of rape evidence kits. In some cases, criminals who could have been caught have offended again. * Debates have flared over civil rights and privacy, presaging possible constitutional challenges to DNA collection and storage. Critics object, for instance, to storing DNA from people arrested but not convicted of crimes and from suspected illegal immigrants. In Britain, which has the world's most aggressive approach to forensic DNA, a legal backlash has already begun. The European High Court of Human Rights ruled this month that the country's indefinite storage of DNA from people merely arrested for crimes violated privacy rights. Britain has until March to submit plans for destroying samples or to make a case for keeping them. In the U.S., authorities are plunging ahead with a dramatic databank expansion.A California initiative passed in 2004 will permit authorities, starting in January, to store DNA from anyone arrested on suspicion of felonies and serious misdemeanors, even if they are not ultimately convicted.California's database is expected to swell by about 300,000 DNA profiles next year, bringing the total to 1.4 million.The FBI's national database, which already contains 6.4 million profiles, is projected to add about 1.3 million annually from federal arrestees and illegal immigrants alone. When the California law, Proposition 69, passed, it was widely believed that the innocent had nothing to fear from having their genetic profiles in a database, said UC Irvine criminology professor William Thompson, considered the U.S. leading authority on DNA laboratory error.Now, he said, "when you look at all the errors that have come to light around the world -- and we're only finding the tip of the iceberg -- it really raises concerns about how many people you want to have in a database. There are certainly doubts in my mind whether I would want to be in one." A local L.A. paper obtained documents from five state-run and three county forensic labs reporting scores of laboratory errors or "unexpected" resultsover a five-year period ending in 2007. Labs must track these outcomes and keep them on file under state and federal rules. An expert reviewed the results and concluded that "on a regular basis, laboratory personnel make mistakes that could lead to false identifications" of suspects. The records show, for instance, that between 2003 and 2007, the Santa Clara County district attorney's crime laboratory caught 14 instances in which evidence samples were contaminated with staff members' DNA, three in which samples were contaminated by an unknown person and six in which DNA from one case contaminated samples from another. The records also revealed three instances in which DNA samples were accidentally switched, one in which analysts reported incorrect results and three mistakes in computing the statistics used in court to describe the rarity of a DNA profile. The number reported was small considering overall caseload -- 3,100 over five years -- but the expert said mistakes caught by labs "undoubtedly" make up a small fraction of errors. (In fact, he said, labs that report the most are probably better run than those that claim none.) The leading cause of false DNA database matches is cross-contamination of samples,theexpertsaid. An incident in a state-run lab in Sacramento illustrated how easily this can happen: DNA discovered on a cigarette matched the profile of a sexual assault victim from another case. Had the assault victim smoked the cigarette? No. Cross-contamination occurred when the sample from the cigarette was processed close to the victim's vaginal sample.The risk of DNA contamination has "greatly increased" as scientists have learned how to obtain DNA profiles from a billionth of a gram of genetic material, according to a report last year by the Nuffield Council on Bioethics in London, a group that examines developments in biology and medicine. "The results may therefore be misleading, and yet they could be presented as powerful evidence in a courtroom. This makes it vital that defendants are not convicted on a DNA match alone," the report said. Jonathan Jay Koehler, a professor at Arizona State University who has studied lab error, estimated the rate of false DNA matches at about 1 in 1,000, whether they are caught or missed."No one would ride on an airline that crashed one out of every 1,000 flights," he said. Wrongful incriminations from DNA evidence have pierced the science's image of infallibility and our criminal justicy system must be on guard on improper evidence being introduced to juries. Tagged as: california criminal laws, police misconduct Improper Fingerprint Evidence in Los Angeles Criminal CourtroomsPosted on: October 21, 2008 at 3:55 p.m.Los Angeles criminal defense lawyers who defend burglary, murder, and other serious crimes in Southern California courtroom frequently contend with expert testimony related to fingerprint evidence. For example, in trial, a crime scene expert would testify that a print was lifted from the point of entry in a burglary case, and then a scientific examiner testifies that Defendant's prints (based on an expert comparison) match the lifted print from the entryway. In trial, jurors find this testimony very compelling because the use and knowledge of fingerprints science (whether you are providing your fingerprints at the DMV, the notary public, or for some other formal documentation) is part of everyday life for many. A necessary step in trial preparation for a Los Angeles Criminal Defense Lawyer is to hire a defense fingerprint expert, to reexamine the work of the prosecutor's forensic examiner to deterimine whether the testing and comparison of the lift to the defendant's prints was done accurately. The importance of reviewing law enforcement forensic work cannot be overstated. A recent confidential report, regarding LAPD fingerprint testing, concluded that people have been falsely implicated in crimes because the department's fingerprint experts wrongly identified them as suspects. The 10-page internal LAPD report highlighted two cases in which criminal defendants had charges against them dropped after problems with the fingerprint analysis were exposed. LAPD officials do not know how many other people might have been wrongly accused over the years as a result of poor fingerprint analysis and do not have the funds to pay for a comprehensive audit to find out, according to police records and interviews. Subsequently internal discipline investigations led to the firing of one fingerprint analyst, who had been involved in both of the mishandled cases. Three other analysts received suspensions. In addition, two supervisors responsible for overseeing the unit were replaced, staff was bolstered and oversight tightened, she said. There are 78 forensic print specialists assigned to the unit, according to the department's website. They are not sworn police officers but among the hundreds of civilians who fill specialty jobs in the department. After prints are lifted from a crime scene, the specialists run them through automated databases to find possible matches and then analyze those to seek a more precise match. Two other analysts are then supposed to check the work for accuracy. LAPD department officials, however, described a poorly run operation, in which records and evidence were left lying around or misplaced, and supervisors "were stuck in the old way of doing things." Pressed to explain the sloppy work of the unit, the commanding officer of the Scientific Investigation Division, speculated that "people were reviewing the work of friends and just rubber stamping it without really reviewing it." In one of the cases highlighted in the report, a man was extradited from Alabama to face burglary charges after an analyst matched his prints to those found at the scene. The mistake was missed by two reviewers and was caught only when a third reviewer was preparing to testify at the trial. In the other example, Maria Delosange Maldonado, a pregnant hospital technician, was charged in February 2006 with breaking into a San Fernando Valley cellphone store. When questions were raised about the accuracy of the print analysis, the LAPD said the prints could not be reexamined because they had been lost. The audit characterized the fingerprint identification in that case as "erroneous." The LAPD's internal investigation challenges the widely held view that forensic matches made by fingerprint experts are airtight. The authors of the internal LAPD report recalled the infamous example of an Oregon man who was linked through faulty fingerprint analysis by three federal agents to the 2004 terrorist train bombings in Madrid. Tagged as: police misconduct Falsely Accused of Murder: Los Angeles Men Freed after 4 Months in Custody - Wrong Identification to Blame Says ProsecutorPosted on: September 6, 2008 at 10:58 p.m.Two Hollywood men who spent nearly four months in a Los Angeles County jail walked out free after a murder case against them was dropped, in Los Angeles, California. The men, both 20, had been charged with murder and attempted murder in a drive-by gang shooting in April that left one man dead and another injured. "This matter is dismissed in the interest of justice," Superior Court Commissioner Henry J. Hall said Friday afternoon, prompting applause by family members sitting in the courtroom. The men, still wearing their blue jumpsuits, left the courthouse in downtown Los Angeles about 6:30 p.m. Relatives yelled, clapped and rushed toward them. "I feel like a million bucks," said one, "I knew I was wrongfully accused. I just had to wait it out." The decedent Heriberto Osorio, 19, was killed on North Oxford Avenue in Hollywood early on the morning of April 20. Police arrested the two suspect about an hour after the shooting, and prosecutors filed charges a few days later. If convicted, they could have faced life in prison. The Los Angeles Deputy District Attorney on the case said the men matched the physical description given by witnesses and were in the immediate area of the shooting shortly after it occurred. Witnesses also identified both men in a field show-up, singling out one of the men as the gunman. Both men had prior criminal records and police believe at least one had gang affiliations. They both are construction workers. Defendants had denied any involvement and told police that they were at a nearby McDonald's restaurant at the time. Despite the arrests, Los Angeles police detectives discovered the possible involvement of other individuals in the shooting, according to the prosecutor. One woman has since been arrested on suspicion of aiding and abetting, but police are still searching for the gunman. Prosecutors realized that the clock on the McDonald's camera was incorrect and that Defendants said the car they were driving was at the fast-food restaurant just minutes after the shooting. Although the McDonald's video did not show them, it did show the van -- a different vehicle than witnesses said was used in the shooting, according to the prosecutor. Thereafter, after reviewing the case, the L.A. criminal prosecutor made a motion to dismiss the case, which was scheduled for a preliminary hearing next week. "When we put it all together . . . it became clear to me at that point there was reasonable doubt, and, in fact, it was likely they didn't commit the crime," he said. "If someone is in custody improperly, we have to release them as soon as possible." Tagged as: jury trial defense, police misconduct Sex Crimes Defense in California: Conviction Reversed due to Withheld Evidence at TrialPosted on: August 6, 2008 at 9:11 p.m.The failure to disclose evidence by a criminal prosecutor is a defense attorney's fear. Is a prosecutor willing to win at any cost, so that he or she will hide or fail disclose evidence favorable to a criminal defense attorney? While in practice in Los Angeles courts this phenomenon is rare, a recent criminal law case addressed what happens when evidence is withheld from the defense. Los Angeles criminal defense lawyers have many tools to prevent a prosecutor from hiding the ball, including filing informal and formal discovery motions pursuant to Penal Code Section 1054. Specifically the California Court of Appeal ruled a videotape of the medical examination of the alleged victim of a sexual assault, in the possession of a medical professional who works with police and prosecutors, should have been turned over to defense lawyers as potentially exculpatory evidence. The justices said the tape might have been helpful to attorneys for Agustin S. Uribe because it supported a defense expert Tagged as: motion to dismiss unlawful police search, police misconduct, sex crime accusations New Trial Ordered for Criminal Defendant after Government Witness Found LyingPosted on: July 26, 2008 at 7:40 p.m.Sometimes Los Angeles criminal prosecutors use government witnesses without sufficiently checking into their background. Los Angeles criminal defense attorneys use discovery requests, both formal and informal, along with the work of tenacious investigators, to obtain as much information as possible about a government witness prior to cross-examination. In a recent appeal, a criminal defendant earned the right to a new trial, after successfully proffering evidence that the star prosecution witness had presented the trial court with a forged military document and repeatedly lied under oath about being a combat veteran. A divided panel held that Ninth Circuit Judge Richard C. Tallman, sitting by designation for the Idaho District Court, abused his discretion in denying David Roland Hinkson Tagged as: police misconduct Defendant School Teacher Framed, Leading to a False ArrestPosted on: July 26, 2008 at 7:32 p.m.This case is an example of how someone can be framed, falsely accused, and arrested. A Fullerton high school history teacher who was recently jailed when police -- acting on a tip -- found a shotgun and marijuana in his car in the school parking lot was actually the "victim of an elaborate setup," police said. Investigators are now convinced that Gregory Abbott, 31, of Placentia, who has taught at Sunny Hills High School for seven years, is innocent and was actually a victim, said Sgt. Mike MacDonald of the Fullerton Police Department. Detectives want to talk to Abbott's estranged wife and a male friend. MacDonald declined to identify the pair, calling them "persons of interest at this time" and not suspects. Abbott was pulled out of class Tuesday by officers who asked if they could search his car. An anonymous caller had phoned police to report that he had purchased drugs from a teacher at the high school named Abbott, who kept a weapon in his vehicle. The telephone call was made from off campus. MacDonald said Abbott was cooperative from the beginning and gave officers permission to search his car. They recovered an unloaded shotgun, about a gram of marijuana and prescription drugs packaged as if for sale. Abbott was arrested without incident and taken to the Fullerton City Jail, where he posted $25,000 bail. He said the gun and drugs were not his, and a follow-up investigation "revealed he was telling the truth," MacDonald said. Police said that they are still conducting a criminal investigation but that the focus is now on who framed Abbott. "You could say the investigation has taken us in a different direction. We felt a duty to be impartial and fair, checking out Abbott's story," MacDonald said. "We're happy that the results vindicated him. He's had a tough week." Reached by telephone late Thursday, the teacher agreed. "I'm a lot better today," he said. "I feel extremely grateful to the people who were with me through this time, especially the Fullerton police, who did an amazing and professional job by investigating to get to the truth." Abbott said he didn't blame them for arresting him, but that the ordeal seemed surreal. "Nothing even close to this has ever happened to me," he said. "I come from a good family with a good background; to have the police come tell me that there's a shotgun in my car -- I can hardly believe it even now." Tagged as: police misconduct DUI Charges: A Police Officer ArrestedPosted on: July 11, 2008 at 4:58 p.m.There is a stigma attached to individuals arrested and/or charged with Driving Under the Influence. People normally associate a DUI charge with uncontrollable drunks who live in bars and threaten the lives of everyone around them. However, it's proven time and again that responsible individuals can make a mistake in judgment, or find themselves in the wrong place at the wrong time. This can lead to DUI charges. An L.A. County Sheriff was relieved of duty because he'd been suspected of DUI following a traffic accident. The officer was an 18-year veteran and was speeding to the scene of a crime when he hit another car and badly injured those inside. A DUI investigation will surely follow, and this individual could suffer major consequences. If you're charged for DUI offense arrest, here are some tips: - Dont try to talk your way out of it. Police officers have heard the same excuses hundreds of times, and will not likely release you -You must take a blood or a breath test at the station; however, the law does not require you to submit to field sobriety tests, or to being interviewed by the police before you are taken to the station - You will face harsher penalties if you are involved in an accident while DUI including jail, probation, alcohol counseling - There is usually a great possibility that you will lose your license, and pay substantial fines - You or your DUI attorney has 10 days to contact the California DMV (Department of Motor Vehicles) after you have been arrested for DUI. If you fail to do this, you will automatically lose your license on the 30th day after your arrest. Tagged as: police misconduct, violent crimes defense Police Misconduct: Using a Pitchess Motion in Criminal Defense - Penal Code Section 1043Posted on: April 7, 2008 at 4:11 p.m.A successful Pitchess Motion may at times be a powerful tool for defense counsel. Defendants are entitled to relevant "discovery," ie. police reports and witness interviews, contained in the personnel files of an arresting officer. Typically, Los Angeles criminal attorneys file this motion before the preliminary hearing in cases where there are allegations made against arresting police officers of racial discrimination, excessive force, or some other misconduct which is relevant to the criminal case. Prior misconduct evidence can then be used to impeach the officers in the current case. Tagged as: california criminal laws, police misconduct Kestenbaum Eisner & Gorin LLP has been recognized as one of the best U.S. law firms, based on the experience, professionalism, and ethics of its criminal defense lawyers and attorneys. We aggressively defend clients in all Southern California courtrooms on state and federal charges, including DUI, DMV, misdemeanor, felony, juvenile cases, in the following communities and courthouses. |
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