In State v. Gonzales, the WA Court of Appeals held that a trial court did not commit error in admitting evidence that, after the charged conduct, the victim observed the defendant masturbating while holding the victim’s bra.
BACKGROUND FACTS
When J.G. was six years old, she and her younger brother moved in with their grandfather, defendant Eddy Gonzales and his wife. This sexual abuse ended when J.G. was ten or eleven years old. But after the molestation stopped, J.G. once encountered Gonzales masturbating in his room while holding her bra.
When J.G. was eleven years old, she moved out of the house. She informed family members of the molestation. They, in turn, contacted police; who later arrested Mr. Gonzales.
At trial, the Court admitted testimony that he masturbated while holding J.G.’s bra.
The jury acquitted Gonzales of one count of first degree child rape, but found him guilty of the remaining charges. Among other issues not discussed here, Gonzales appealed on the issue of whether the trial court wrongfully admitted that evidence. He argued this uncharged misconduct goes to propensity and should be excluded under ER 404(b). He argues the trial court wrongfully admitted this testimony to show his “lustful disposition” toward J.G., particularly because it occurred after the charged conduct.
COURT’S ANALYSIS & CONCLUSIONS
First, the Court of Appeals described the rules of evidence which allow or disallow the evidence from getting to the jury. In short, (ER) 404(b) provides that evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for “other purposes.”
Consequently, the Court reasoned that Washington courts have consistently held one such other purpose is evidence of collateral sexual misconduct when it shows the defendant’s lustful disposition toward the victim. This is because a lustful disposition makes it more likely that the defendant committed the crime charged. Evidence of uncharged sexual misconduct occurring before or after the charged acts is admissible. In an ER 404(b) analysis, the trial court must balance and weigh probative value against the potential for unfair prejudice.
Second, the Court of Appeals applied the law to its reasoning. It said that here, the trial court admitted J.G.’s testimony that she saw Gonzales masturbating while holding her bra. The trial court reasoned that Gonzales’s behavior was sexual conduct that showed lustful disposition toward J.G. The trial court also found that the probative value of the evidence was not outweighed by unfair prejudice.
“The trial court did not abuse its discretion,” said the Court of Appeals. “Gonzales’s action shows a sexual desire for J.G. Thus, it goes toward an ‘other purpose’ as provided under ER 404(b).”
Third, the Court of Appeals rejected Gonzales’s arguments that any uncharged sexual misconduct is unfairly prejudicial in a sex abuse prosecution. It reasoned that the admitted evidence was not unfairly prejudicial because his act was not more inflammatory than the charged crime, and J.G. was only indirectly victimized by it.
Finally, the Court of Appeals rejected Gonzales’s arguments that the admitted testimony had diminished probative value because the incident occurred after the alleged abuse. The Court of Appeals reasoned that an act occurring after the charged abuse is relevant to lustful disposition. It was not an abuse of discretion to conclude that the probative value of this testimony was not outweighed by unfair prejudice.
With that, the Court of appeals affirm the admission of the “lustful disposition” testimony under ER 404(b) and upheld Mr. Gonzalez’s conviction.
My opinion?
It’s tricky to predict whether judges will admit or deny evidence when the evidence is offered for “other purposes” under ER 404(b). Judges have lots of discretion an how and where the rule applies. Still, judges must follow the doctrine of stare decisis and make rulings which are consistent existing case law when rendering decisions.
Fortunately, I’m quite familiar with the case law on this subject. Please contact my office if you, a friend or family member faces charges and the State wants to offer evidence of the offender’s behavior which falls outside the scope of the immediate facts that are alleged. Perhaps a well-argued pretrial motion to suppress evidence could change the complexion of the case and result in reducing or dismissing the charges.
Excellent article reporter Max Wasserman of the News Tribune reports that lawmakers are optimistic that 2018 may bring the end of Washington’s death penalty, following changes in senate leadership and years of stalled attempts in the state Legislature.
Wasserman reports that under current state law, individuals found guilty of aggravated first-degree murder can be put to death by hanging or lethal injection. The latest bill would replace that sentence with life imprisonment without the possibility of parole. Should it pass, Washington would a list of other states that have eliminated capital punishment in recent decades.
Wasserman also reports that the new chair on the committee overseeing the bill, state Sen. Jamie Pedersen, D-Seattle, expects the current push to abolish the death penalty to make it through the senate and possibly to the governor’s desk — the farthest any related bill would have made it in five years.
“The stars may be aligning now for support of doing away with the death penalty,” Pedersen said.
Washington’s death penalty has been seldom used in recent years. In 2014, Washington Gov. Jay Inslee placed a moratorium on capital punishment, suspending the practice for as long as he’s in office. The state’s last execution occurred in 2010 when Cal Coburn Brown, convicted for the 1991 rape and murder of 21 year-old Holly Washa, was put to death by lethal injection.
Despite its lack of use, the death penalty remains on the books in Washington. Attempts to match the governor’s position in the legislature have stalled in the past five decades, despite widespread support among lawmakers for abolishing it.
Wasserman reports that some place blame with prior leadership of the senate’s Law and Justice Committee. Sen. Mike Padden, R-Spokane Valley, who has been replaced by Pedersen as chairman of that committee, would not grant past death-penalty bills a hearing.
“I don’t anticipate I’ll be supporting the bill,” Padden said this week. “Some crimes are so heinous and so brutal that I think the death penalty is appropriate”
Padden pointed out that capital punishment also has been used as a negotiating tool against some of the state’s most egregious offenders, including serial killer Gary Ridgway. Ridgway — also known as the Green River killer — agreed to tell prosecutors the whereabouts of victims in exchange for the death penalty being taken off the table in his case.
Apparently, the state’s prosecutors are split on whether to abolish the death penalty.
“The death penalty is a question with profound moral implications, certainly worthy of wide discussion,” Pierce County Prosecuting Attorney Mark Lindquist said. “That discussion should not be limited to legislative debate in Olympia, but instead should be the subject of civic dialogue around the entire state.”
“The constitutionality and evenhanded imposition of the death penalty in Washington State are issues that we will defend; but the costs, timely imposition and ultimate appropriateness of death for aggravated murder is certainly open to debate,” McBride told The News Tribune via email.
CRITICS OF THE DEATH PENALTY
Wasserman reports that critics of the death penalty have long scrutinized the practice as a high-stakes arm of an imperfect justice system that can — and has — executed innocent people. More than 150 people nationwide have been exonerated from death row since 1973, according to data from the National Coalition to Abolish the Death Penalty (NCADP).
One of those cases occurred in Washington. Benjamin Harris was sentenced to death in 1986 for the murder of Jimmie Lee Turner, a Tacoma auto mechanic, only to have the charges dropped on appeal 11 years later. Inadequate defense counsel may have led to Harris’ initial conviction, a point NCADP program director Toni Perry believes is emblematic of wealth disparities in capital sentencing.
“Minorities, persons with diminished capacities who can’t defend themselves, who can’t get a good attorney — it’s arbitrary. There are no rich people on death row,” Perry said.
The death penalty also comes with fiscal baggage. Largely due to legal fees in the appeal process, the death penalty costs an average $1 million more per case than life imprisonment in Washington, according to a 2015 Seattle University study of state convictions.
For these reasons, Washington Attorney General Bob Ferguson called upon the Legislature to do away with the practice last year. Five states — New Jersey, New Mexico, Illinois, Connecticut and Maryland — have since 2007 passed legislation to eliminate their death penalty.
“There is no role for capital punishment in a fair, equitable and humane justice system,” Ferguson, who requested this year’s bill, said in 2017 press release.
“Whether new leadership and a Democratic majority will be enough to achieve the goal one year later remains to be seen,” reports Wasserman.
Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.
In State v. Smith, the WA Supreme Court held that the accidental recording of a domestic violence confrontation between the defendant and his wife was admissible at trial and did not violate the defendant’s rights under the Washington Privacy Act.
BACKGROUND FACTS
John Garrett Smith and Sheryl Smith were married in 2011. On the evening of June 2, 2013, the Smiths engaged in an argument at their home that turned violent. During the incident, Mr. Smith used the home’s landline cordless phone to dial his cell phone in an attempt to locate the cell phone. The cell phone’s voice mail system recorded the incident because Mr. Smith left the landline open during his attempt to find his cell phone. This voice mail contained sounds of a woman screaming, a male claiming the woman brought the assault on herself, more screams from the female and name calling by the male.
Mr. Smith punched and strangled Mrs. Smith to the point of unconsciousness and then left their home. When Mrs. Smith regained consciousness, her eyes were black and swollen shut, her face was swollen and bleeding, and she had difficulty breathing.’ Mrs. Smith was hospitalized for several days due to the severity of her injuries, which included a facial fracture and a concussion. For months after the assault, she suffered severe head pain, double vision, nausea, and vertigo.
Prior to trial, Mr. Smith filed a motion to suppress the audio recording found on his cell phone that captured part of the incident, including him threatening to kill his wife. Mr. Smith argued that Ms. Williams had unlawfully intercepted the recording pursuant to the Washington Privacy Act, when she listened to the voice message left on his phone. The trial court denied the motion to suppress, ruling that Ms. Williams’s conduct did not constitute an interception. The court also ruled that Washington’s Privacy Act, which prohibits the recording of private conversations without consent, did not apply because the information was accidentally recorded.
The case proceeded to a bench trial. The trial court found Mr. Smith guilty of attempted second degree murder, second degree assault, and the related special allegations of domestic violence, but acquitted him of the remaining counts and the aggravator. Mr. Smith was sentenced to a standard range sentence of 144 months.
The Appeal
He appealed, and his appellate argument focused on the trial court’s denial of the motion to suppress. Smith continued to assert that the recording was unlawfully admitted because Ms. Williams had unlawfully intercepted it.
The Court of Appeals reversed Mr. Smith’s conviction for attempted second degree murder, holding that the trial court erred in denying the motion to suppress the recording of the incident because (1) the recording was of a “private conversation” and (2) Mr. Smith had unlawfully recorded the “private conversation,” despite the fact that the recording was made inadvertently. The Court of Appeals rejected Mr. Smith’s assertion that Ms. Williams had unlawfully intercepted the conversation, and decided the case on a different issue, that is, whether Mr. Smith’s actions violated the privacy act. The State sought review on the issue of how the privacy act is to be properly applied in this case.
ISSUE
Whether the voice mail recording is admissible in Mr. Smith’s criminal prosecution.
COURT’S ANALYSIS & CONCLUSIONS
The WA Supreme Court reverse the Court of Appeals and reinstated Mr. Smith’s attempted second degree murder conviction.
The Court reasoned that accidental, inadvertent recording on a cell phone voice mail of a domestic violence assault did not contain a “conversation” within the meaning of the privacy act, where the recorded verbal exchange consisted mostly of sounds of a woman screaming, a male claiming the woman brought the assault on herself, more screams from the female, name calling by the male, and the man stating he will kill the woman when she told him to get away. Furthermore, the owner of the cell phone was deemed to have consented to the voice mail recording due to his familiarity with that function.
The lead opinion was authored by Justice Madsen and signed by Justices Wiggins, Johnson and Owens. Justice González concurred in the result on the grounds that the defendant cannot invade his own privacy and cannot object about a recording he made being used against himself. Justice Gordon McCloud authored a separate concurring opinion, which was signed by Justices Stephens, Yu, and Fairhurst, in which she stated that the verbal exchange on the recording constitutes a “private” conversation which was solely admissible pursuant to statute.
Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.
In State v. Vela, the WA Court of Appeals held that the defendant’s Sixth Amendment right to present evidence was violated when the trial court excluded testimony regarding why the defendant, who claimed self-defense, feared the victim.
BACKGROUND FACTS
On February 20, 2014, Duarte Vela shot and killed Antonio Menchaca in Okanogan County. The question at trial was why Duarte Vela shot and killed Menchaca.
Apparently, Menchaca was the ex-brother-in-law of Duarte. Vela and his family were living in Okanogan County. Apparently, Vela and his family were afraid of Menchaca, who just finished serving a prison sentence in California. Also, Vela had already contacted Menchaca when Menchaca returned from California and told Menchaca to stay away from his family.
On the date of the incident, Vela’s wife called Vela and said she thought she saw Menchaca driving by their house. Vela went home, retrieved a firearm and then was heading to Brewster to pick up a child, when he saw Menchaca parked along the road on old Hwy 97 near the Chiliwist Road. Vela stopped and confronted Menchaca. According to a witness at the scene, Vela then pulled out a pistol and shot the Menchaca two or three times. Menchaca died at the scene from the gunshots.
Vela then drove back to his home, put the gun away and called 911 to report the shooting. Vela told Deputies he was at his home and would be waiting for them. Deputies arrived and picked up Vela without incident. Vela was transported to the Okanogan County Jail and booked for various firearm offenses and Murder in the Second Degree.
The trial occurred in January 2015. Prior to jury selection, the State moved in limine to exclude evidence of Menchaca’s prior bad acts. Vela responded that he sought to admit certain prior bad acts of Menchaca known to him to establish the reasonableness of his fear of Menchaca. Specifically, Vela wanted to introduce testimony that (1) Menchaca threatened to return to Okanogan and kill Duarte Vela’s after being released from prison, (2) Menchaca kidnapped Vela’s younger sister in 2007 when she was just 15 years old, (3)
Menchaca had repeatedly battered Vela’s sister throughout their marriage, and that she had told Vela about this, (4) Vela’s wife witnessed the domestic violence abuse from Manchaca to Vela’s sister (5) Vela was told by his family members about Menchaca’s threat to kill his family and Menchaca’s domestic violence against Blanca, (6) Vela feared Menchaca being around his family, (7) Vela believed he needed to arm himself when he went to his sister’s apartment to confront Menchaca, (8) Vela’s wife told him the SUV driver Martinez and Menchaca gave her a threatening look when the SUV first parked in or near the pullout, (9) why Vela followed the SUV the first time, (10) why Vela believed there were two people in the car when he followed the SUV the first time, (11) Martinez’s statement to him that he was alone in the SUV, (12) what he felt when he saw Martinez later drive by with Menchaca in the passenger seat, (13) why Vela had an elevated fear as he went after the SUV for the second time, (14) Vela’s wife being upset when he returned and explained that Menchaca was not in the SUV, (15) Vela’s belief that something was wrong when Martinez and Menchaca both got out of the car and walked toward him, (16) what Vela feared Menchaca and Martinez might do as they walked toward him, and (17) the degree of bodily harm Vela feared just before he shot Menchaca, as Menchaca became upset and reached into his pocket.
However, the trial court excluded the proferred evidence on the basis that the testimony was irrelevant, too remote in time and ultimately inadmissible.
Also, toward the end of trial, Duarte Vela requested a “no duty to retreat” jury instruction.
However, the trial court denied the instruction. The jury returned a verdict of guilty on all counts. Vela appealed.
COURT’S ANALYSIS & CONCLUSIONS
The Court of Appeals reasoned that right to present testimony in one’s defense is guaranteed by both the United States and the Washington Constitution. Here, Vela argued the trial court’s evidentiary rulings violated his right to present a defense. He principally argues the trial court committed reversible error when it excluded evidence relating to: (1) Menchaca’s prison threat, (2) Menchaca’s years of domestic abuse against Blanca, (3) Menchaca’s abduction of Maricruz, (4) why he feared Menchaca, and (5) the type of bodily harm he feared just before he shot Menchaca.
The Court reasoned that in considering a claim of self-defense, the jury must take into account all the facts and circumstances known to the defendant. “Because the vital question is the reasonableness of the defendant’s apprehension of danger, the jury must stand as nearly as practicable in the shoes of the defendant, and from this point of view determine the character of the act,” said the Court of Appeals.
Furthermore, the Court reasoned that evidence of a victim’s propensity toward violence that is known by the defendant is relevant to a claim of self-defense because such testimony tends to show the state of mind of the defendant and to indicate whether he, at that time, had reason to fear bodily harm. Thus, such evidence is admissible to show the defendant’s reason for fear and the basis for acting in self-defense.
“Here, Vela sought to introduce Menchaca’ s threat to kill Vela’s family and Menchaca’s past domestic violence not to prove they were true, but for the very relevant purpose of showing the reasonableness of his fear of Menchaca,” reasoned the Court of Appeals. “The evidence, therefore, was not hearsay. To the extent the trial court excluded this and
several miscellaneous statements offered by Duarte Vela to show his state of mind, the
trial court erred,” said the Court.
The Court also said that the reasonableness of Vela’s fear of Menchaca is one of two components of his self-defense claim, the other component being the degree of bodily harm he feared just before he shot Menchaca:
“Menchaca’s past threat to kill Vela’s family was central to Duarte Vela’s ability to explain the reasonableness of his fear. Unless the evidence was inadmissible under the State’s other arguments, the trial court’s exclusion of this evidence deprived Vela of the ability to testify to his versions of the incident.”
Furthermore, the Court of Appeals reasoned that the trial court’s evidentiary rulings precluded Vela from presenting a legal defense to the killing that he admitted to and omitted evidence that would have created a reasonable doubt that did not otherwise exist. “For this reason, the trial court’s evidentiary rulings violated Duarte Vela’s Sixth Amendment right to present a defense,” said the Court of Appeals.
Next, the Court of Appeals addressed whether the trail court erred in refusing to allow Vela the “No Duty to Retreat” jury instruction. “Because the facts would not support retreat as an option to someone pulling a gun at close range and because the State did not argue that Vela could have retreated, the trial court did not err in refusing the instruction.”
CONCLUSION
Although the Court of Appeals denied Vela’s argument of instructional error, it concluded the trial court’s evidentiary rulings denied his Sixth Amendment right to present
a defense. It therefore reversed and remanded for a new trial.
My opinion? Good decision. It’s wrong to hobble defendants of their right to self-defense when the defense is justified. For more on this topic, please read my Legal Guide titled, “Self-Defense.” And please call my office if you have friends or family accused of crimes involving self-defense.
Kelly suggest reforms to rein in the charging powers of prosecutors. He recommends the creation of independent panels of clinical experts that would screen offenders and recommend to prosecutors who ought to be diverted to treatment.
“There is nothing about punishment that changes the underlying conditions, disorders and deficits that the majority of criminal offenders bring into the justice system,” Kelly says. Arrestees with mental illness, substance-use disorders, homelessness and other problems churn through the system and into prison, where the underlying issues that led to a lawless life are ignored.
In a conversation with TCR Contributing Editor David J. Krajicek, Kelly explains why he believes the system should incorporate more carrot and less stick for offenders and how the Trump administration’s approach threatens to make things worse. He also suggests that the public already has a more sophisticated view of how to fix the system than our political leaders.
The Crime Report: What is the impact of the country’s justice policy failures?
William R. Kelly: The short financial and statistical answer is that over the past 45 years, we have spent $1 trillion on the war on crime, $1 trillion on the war on drugs and have accomplished a recidivism rate of 65 percent. Nearly all of this effort has focused on trying to punish crime out of people, based on naïve conceptions of criminality such as “hanging around with the wrong people” and “making bad decisions.” The evidence is quite clear that crime has much more complex origins and correlates.
What we have accomplished is a nearly perfect recidivism machine, placing all of us at the unnecessary and avoidable risk of criminal victimization, and wasting extraordinary amounts of money.
TCR: You refer to “the culture of American criminal justice.” What are its key characteristics and how do you change it?
Kelly: It is squarely based on the “tough on crime” mantra. This has dictated the decisions of legislators, prosecutors, judges, and corrections officials. The focus over the past 45 years has been driven by retribution and misguided assumptions that punishment deters re-offending. The question that has been routinely asked is how much punishment does this offender deserve. A more productive question for many offenders is how do we reduce the likelihood a particular offender will reoffend…
We need to provide clear incentives to motivate changing how we think about crime and punishment. Cost-benefit analyses conclusively show that behavioral change through clinical intervention like mental health and substance use disorder treatment is much more effective and cost efficient. The financial advantages should motivate legislators and local government officials. Reducing recidivism should be an incentive for prosecutors, judges, public defenders, and probation and parole officers, who will benefit from reductions in caseloads. Then there is the greater good of enhanced public safety, something we incorrectly assume the justice system already does.
TCR: You say the facile American view of crime and punishment got us here. Have voters grown more sophisticated, or are reform-minded pols still at risk of being Willie Hortoned?
Kelly: Public opinion data demonstrate that much of the public has a more nuanced view of crime and punishment than many legislators, prosecutors and judges. The public believes that the purpose of corrections is to rehabilitate offenders and therefore reduce recidivism. Many have moved beyond “lock ‘em up and throw away the key.”
Unfortunately, many policymakers, elected officials and some segments of the public still seem to be holding on to the idea that criminals are just bad people deserving maximum punishment. I’m sorry to say that Willie Horton is alive and well…There appears to be a reluctance to really embrace meaningful, comprehensive criminal justice reform.
TCR: You write, “We have arrived at the nadir of politics and policy.” Did you write that before or after Donald Trump’s election?
Kelly: I wrote that before Trump was elected when I incorrectly believed that we had already reached bottom. Who would have thought that anyone with any sense of history and even a superficial exposure to the evidence would run as the law-and-order candidate and resurrect the war on drugs?
TCR: How do you demonstrate that “tough” and “dumb” are synonyms when it comes to criminal justice?
TCR: Who’s to blame for the state of “correctional malpractice” you say we are in?
Kelly: First and foremost, elected officials who have blindly championed “tough on crime” policies to their political benefit, but to the detriment of public safety and the prudent use of tax dollars. State legislators and Congress have provided the mechanisms for tough on crime—mandatory sentences, restrictive parole release laws, and an ever-expanding criminal code that seems to make criminal justice the go-to system for just about every social ill.
But the culpability of elected officials goes well beyond that. The vast majority of offenders in the criminal justice system have a substance-use disorder, 40 percent are mentally ill, and 60 percent have had a least one traumatic brain injury often leading to neurocognitive dysfunction…The decision to not properly fund public health, schools and social welfare agencies has created problems that by default are managed by the criminal justice system.
Criminal justice reform means much more than merely reforming the criminal justice system. It requires massive changes to and investment in a variety of collateral institutions.
TCR: Your book articulates and recommends a scientific approach to justice reform. Yet science is out of favor in Washington and many state houses. Is there a scientific path forward?
Kelly: Yes there is, but I am afraid that we need to disguise it for some, by minimizing the science and emphasizing the public safety benefits and cost savings.
TCR: You note an overlooked data point: The country has 21 million people with substance-use disorders, the world’s third-highest rate. What explains this particular American exceptionalism?
Kelly: It is largely a result of the lack of public substance abuse resources, including inadequate treatment capacity and insurance coverage. Much of it can be attributed to the failure of the war on drugs and the belief that we can either punish or threaten substance abuse out of people. Criminalizing substance abuse rather than treating it as a public health problem has led to the failure to provide adequate funding for treatment.
Unfortunately, the picture is bleaker. The majority of substance abuse and mental health treatment in the U.S. is paid for by Medicaid. Current versions of repeal and replacement of the Affordable Care Act call for substantial cuts to Medicaid. That does not bode well for a problem that is crippling the country, the economy, communities, families, and the justice system.
TCR: You write that we have used an absurdly simplistic approach (lock ‘em up) for a boundlessly complex problem. Explain briefly the research on co-morbidity among inmates.
Kelly: The vast majority of offenders in the criminal justice system have clearly identifiable disorders, deficits and impairments. Many have more than one disorder, known as co-morbidity or co-occurring disorders. For example, the majority of offenders with a mental illness also have a substance-use disorder. Neuro-cognitive problems are often co-morbid with mental health and substance abuse. It does not require a clinician to appreciate that “lockin’ ‘em up” does nothing to alleviate these conditions and in fact typically exacerbates them.
When we do attempt to address these problems–diversion to a drug court or a mental health court–our focus is on just one crime-related condition. Our correctional treatment and rehabilitation efforts typically ignore co-morbidity.
TCR: What do the rest of us in a presumably civilized society owe these damaged people?
Kelly: I don’t think it’s so much what we owe them, but what do we owe ourselves: lower crime and recidivism, lower risk of being victims of crime, and lower cost of criminal justice. We have the tools to accomplish these things, but making it a political priority has been elusive.
TCR: You compare the U.S. system to those of Germany and Holland; it doesn’t stack up well. You cite one lesson we can learn from those countries: “If you treat inmates like humans, they will act like humans.” How is it possible that we don’t know that already?
Kelly: In order to justify our draconian and dysfunctional reliance on punishment, we need to think of criminals as “not like us” in fundamental ways, as deserving retribution and harsh punishment. Punishment is what we have been told is the only thing “these people” will understand.
Psychological research confirmed a long time ago that, in most cases, incentives work much better than punishment for changing behavior. This is another example of the disjuncture between scientific evidence and criminal justice policy.
TCR: Your key recommendation is an “unprecedented expansion” of diversion away from court toward intervention and treatment. Describe the panel review process you suggest.
Kelly: Traditional criminal prosecution, conviction and punishment are entirely appropriate for many offenders. For example, violent offenders and chronic, habitual offenders probably need to be separated from society through incarceration in the interest of public safety. For many others, such as non-violent offenders and many drug offenders, we have a much better chance of reducing recidivism by diverting them and mitigating the factors that are associated with their criminality. One of the key issues here is making good decisions about who to divert and who to prosecute.
We developed the concept of independent panels of clinical experts to facilitate better decision-making, both in terms of who should be diverted and what treatment or intervention will decrease the probability of recidivism. Offenders often have complex clinical needs that require the special expertise of psychiatrists, psychologists and clinical social workers who can assess and diagnose, determine the risk of re-offending, and make recommendations to prosecutors.
The goal is to divert appropriate individuals away from traditional prosecution to situations where their risk can be supervised and managed and where they can receive adequate treatment and intervention.
TCR: And this is the “disruptive innovation” of your book title?
Kelly: The panels are part of it. Implementing this concept will require a substantial shift in how prosecutors do their jobs, as well as how we think about crime and punishment. In effect, this requires changing the criminal justice culture.
We also argue that all levels of government need to address major deficiencies in public health, a fundamental consideration in assuring adequate capacity and expertise for intervention and treatment. The bigger picture is that criminal justice reform requires disruptive innovation of collateral institutions, such as public health.
TCR: And how might it be greeted by prosecutors, who hold all the power right now?
Kelly: This will not be easy. However, reasonable incentives for prosecutors should be recidivism reduction, in turn reducing caseloads.
The primary reasons that prosecutors’ caseloads are so large and unmanageable relate to the failure to reduce recidivism.
TCR: You say these changes will force us to redefine success in our justice system. How so?
Kelly: Success should be measured by recidivism rates, something directly related to performance of criminal justice. As it stands now, there really is no accountability. Everyone involved in criminal justice–legislators, police, prosecutors, defense attorneys, judges, and corrections officials–should all be held responsible for recidivism reduction. That would also be a disruptive change.
TCR: Tell me about the process of partnering with Robert Pitman and William Streusand in this book.
Kelly: I wrote the book, but both Pitman and Streusand played very important roles in devising solutions. For example, Pitman, a former U.S. Attorney who is now a federal judge, brought his knowledge and expertise to the task of developing statutory and procedural details for how the expert panels would fit into the roles and responsibilities of prosecutors, defense counsel and judges.
The input of Streusand, a psychiatrist, was crucial in the development of the clinical protocol for the expert panels and assessing offender dysfunction, as well as the discussions about fixing public health.
TCR: You were going through a serious health crisis while writing this book, as you point out in the introduction. I hope you are doing well. I wonder if that diversion somehow informed the book’s content.
Kelly: Thank you. I am in complete remission and feel very blessed. To be honest, it could not have worked out any better. I was diagnosed in early March of 2016, when I had a rough draft of one chapter written. I was so fortunate that I had this project to distract me from the reality of being pretty sick and going through some difficult chemo. It was also fortuitous that I had two collaborators who are very good friends and played important roles in my recovery.
I’m not sure that being sick informed the content, but I suspect it influenced the tone. If I sound impatient at times in the book, it is probably a result of being confronted with the reality that life is short.
My opinion? Excellent article, and excellent book by Mr. Kelly.
Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.
“Experts are telling me there’s more violence around marijuana than one would think and there’s big money involved,” Sessions said.
In April, Sessions promised the task force would “undertake a review of existing policies in the areas of charging, sentencing and marijuana to ensure consistency with the department’s overall strategy on reducing violent crime.”
That was after Sessions told reporters in February that the nation was seeing “real violence” around the “unhealthy practice” of marijuana use, according to POLITICO.
According to Santos, however, Mr. Sessions’ statements run contrary to the experience in Washington state, which became one of the first two U.S. states to legalize recreational marijuana use for adults in 2012.
Since voters approved Initiative 502, FBI crime statistics show lower rates of violent crime in Washington than before legalization. According to the FBI data, in 2011 there were 295.6 violent offenses reported per 100,000 Washington residents. In 2015, the most recent full year of data available, that rate had fallen to 284.4 violent offenses per 100,000 people.
Other data compiled by the Washington Association of Sheriffs and Police Chiefs showed some fluctuations in violent crime rates but still found no statistically significant increase. According to those reports, in 2012 there were 3.6 violent offenses per 1,000 state residents. In 2016, the state’s violent crime rate was 3.3 offenses per 1,000 people.
Santos writes that the downturn in violent crime in Washington is consistent with national trends. A Pew Research Center analysis of the FBI data found that nationwide, the rate of reported violent crimes in 2015 was roughly half what it was in 1993.
Still, Washington’s violent crime rate in 2015 was substantially lower than the national rate, according to the FBI data.
Neither the FBI data nor the data from the Washington Association of Sheriffs and Police Chiefs specifically tracks violent crime that might be related to marijuana. A spokeswoman for the Tacoma Police Department said her agency doesn’t track offenses that way, either.
“In Washington state, I think it would be a strain to correlate violent crime with marijuana usage,” said Mitch Barker, the executive director of the sheriff and police chiefs group. “I would struggle to believe that the legalization of marijuana or more legalization relates to violent crime — somebody would have to make that case to me.”
State Rep. David Sawyer, D-Tacoma and the chairman of the House committee that deals with marijuana, said some state officials initially expected crime to go up with marijuana legalization, especially since the state’s weed stores run entirely on cash.
That didn’t happen, Sawyer said.
“As far as I’m aware there is no credible study linking violent crime and marijuana,” he said. “I think what more people are realizing is violent crime is linked to keeping marijuana illegal . . . In general, legalization takes money out of the hands of criminals,” he said, referring to drug cartels.
Rivers said she still thinks it would be too costly and difficult for the federal government to try rein in states that have legalized recreational and medical marijuana. According to the National Conference of State Legislatures, eight states plus Washington, D.C. have legalized recreational use of pot, while 29 states have legalized medical-marijuana use.
Yet in May, Sessions asked Congress to lift a restriction that prevents the Justice Department from using federal money to interfere with states that have legalized medical marijuana. Sessions called the restriction on federal prosecutions “unwise… particularly in the midst of an historic drug epidemic and potentially long-term uptick in violent crime,” according to reports by Massroots.com and The Washington Post.
Sawyer said he remains concerned that Washington’s system could be at risk.
“I think it’s a very real possibility,” Sawyer said. “But we’re going to see what the administration chooses to do.”
VIOLENT CRIME RATES IN WASHINGTON STATE
The Federal Bureau of Investigation reports violent crime rate in Washington has declined since voters here legalized recreational marijuana use in November 2012. The FBI numbers are based on crimes reported to law enforcement agencies.
2010: 313.5 offenses per 100,000 city inhabitants
2011: 294.6 offenses per 100,000 city inhabitants
2012: 295.6 offenses per 100,000 city inhabitants
2013: 289.1 offenses per 100,000 city inhabitants
2014: 285.8 offenses per 100,000 city inhabitants
2015: 284.4 offenses per 100,000 city inhabitants
The state’s rate of violent crime in 2015, the most recent year of data available, also was substantially lower than the national average, according to the FBI. Nationally, the estimated rate of violent crime was 372.6 per 100,000 inhabitants in 2015.
Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.
In 2013, Matthew Erickson, a black man, was charged in Seattle Municipal Court with Unlawful Use of a Weapon and Resisting Arrest. After voir dire, the City of Seattle (City) exercised a peremptory challenge against tjuror #5, who was the only black juror on the jury panel. After the jury was empaneled and excused from the courthouse with the rest of the venire, Erickson objected to the peremptory challenge, claiming the strike was racially motivated. The court found that there was no prima facie showing of racial discrimination and overruled Erickson’s objection.
Erickson was convicted on both counts.
Erickson appealed the municipal court’s decision to King County Superior Court. The superior court affirmed the municipal court, finding that the circumstances surrounding the challenge did not raise any inference that the juror was stricken because of his race. The judge did not address whether Erickson’s motion was timely.
ISSUES
The WA Supreme Court granted review of Erickson’s appeal on the following issues:
1. Did Erickson waive his right to a Batson challenge when he objected after the jury was empaneled and both the jury and venire excused?
2. Did the trial court error in finding that Erickson did not make a prima facie showing of racial discrimination when the City struck juror #5?
BATSON V. KENTUCKY: THE LEGAL BACKGROUND ON RACE-BASED PEREMPTORY STRIKES
For those who don’t know, in Batson v. Kentucky, the United States Supreme Court created a 3-step process for enforcing the constitutional rule against excluding a potential juror based on race. First, the defense must show that the circumstances at trial raise an inference of discrimination. Second, the prosecutor must give a nonracial reason for the strike. Third, the court decides if the prosecutor intentionally discriminated against the juror because of race. The decision was made to stop the unfair practice of race-based peremptory strikes of qualified minority jurors because at that time, prosecutors could easily mask their efforts to exclude racial minorities from jury service.
COURT’S ANALYSIS & CONCLUSIONS
First, the Court ruled that Erickson did notwaive His Right to a Batson challenge when he objected to the striking of a juror after the jury was empaneled but before testimony was heard. It reasoned that a number of federal courts also allow Batson challenges after the jury has been sworn. Read together, the case law has adopted rules requiring that a Batson challenge be brought at the earliest reasonable time while the trial court still has the ability to remedy the wrong.
“These cases recognize that judges and parties do not have instantaneous reaction time, and so have given both trial courts and litigants some lenience to bring Batson challenges after the jury was been sworn,” said the Court. “This is in line with our own jurisprudence.”
The Court further stated that objections should generally be brought when the trial court has the ability to remedy the error, and allowing some challenges after the swearing in of the jury does not offend that ability.
“Although the timing was not ideal, the Batson challenge was raised when the trial court still had an opportunity to correct it,” said the Court. “So even though Erickson brought his Batson challenge after the jury was empaneled, the trial court still had adequate ability to remedy any error. Therefore, Erickson made a timely Batson challenge.”
Second, the WA Supreme Court Court ruled that the trial court did, in fact, error in finding that Erickson did not make a prima facie showing of racial discrimination when the Prosecutor struck juror #5.
Here, and in bold strokes, the Court changed how Batson is applied in Washington so that striking a juror who is the only member of a cognizable racial group automatically triggers a full Batson analysis by the trial court:
“The evil of racial discrimination is still the evil this rule seeks to eradicate,” the court explained, writing that “this alteration provides parties and courts with a new tool, allowing them an alternate route to defend the protections espoused by Batson. A prima facie case can always be made based on overt racism or a pattern of impermissible strikes. Now, it can also be made when the sole member of a racially cognizable group is removed using a peremptory strike.”
With that, the WA Supreme Court carved the following bright-line rule adopted from State v. Rhone:
“We hold that the trial court must recognize a prima facie case of discriminatory purpose when the sole member of a racially cognizable group has been struck from the jury. The trial court must then require an explanation from the striking party and analyze, based on the explanation and the totality of the circumstances, whether the strike was racially motivated.”
In other words, the peremptory strike of a juror who is the only member of a cognizable racial group on a jury panel does in fact, constitute a prima facie showing of racial motivation. Also, the trial court must ask for a race-neutral reason from the striking party and then determine, based on the facts and surrounding circumstances, whether the strike was driven by racial reasons.
The WA Supreme Court reverse Erickson’s conviction and remanded his case back to the trial court for a new trial.
My opinion? I’m very pleased. I wrote about unlawful race-based peremptory strikes in my blog on State v. Saintcalle; a WA Supreme Court case having similar dynamics, peremptory strikes and Batson challenges to the case at hand. In that post, I was very disappointed that the WA Supreme Court failed to fix a systemic problem of Prosecutors exercising race-based peremptory strikes during jury selection.
Finally, the WA Supreme Court has become more proactive in stopping this unfair, unconstitutional practice. It’s not enough for Prosecutors to give utterly superficial reasons for striking minority jurors when the real reason for striking them is blatantly staring us in the face. Now, and finally, Prosecutors must prove that their decision to strike is not race-based. This subtle, yet oh-so-important shift in perspective effectively addresses what’s really happening during jury selection and makes a solution toward preventing race-based peremptory strikes. Excellent.
Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.
In Godoy v. Spearman, the Ninth Circuit Court of Appeals overturned a murder conviction because a juror inappropriately communicated with a “judge friend” about the case during deliberations.
BACKGROUND FACTS
Enrique Godoy was convicted of second-degree murder by a Los Angeles County Superior Court jury. A week before his June 12, 2006 sentencing, he moved for a new trial alleging that Juror 10 had improperly communicated about the case with a “judge friend” during deliberations. To substantiate his allegations, Godoy brought brought alternate juror “E.M.” to his sentencing hearing. The trial court continued Godoy’s sentencing to a future court date. Later, Godoy sent the Prosecutor a declaration about Juror 10’s misconduct from alternate juror N.L., who wrote the following:
“During the course of the trial, juror number ten kept continuous communication with a gentleman up north, who she referred to as her “judge friend.” Juror number ten explained to us, the jury as a whole, that she had a friend that was a judge up north. From the time of jury selection until the time of verdict, juror number ten would communicate with her “judge friend” about the case via her TMobile Blackberry, a two way text paging system. When the jury was not sure what was going on or what procedurally would happen next, juror number ten would communicate with her friend and disclose to the jury what he said.”
Despite this “smoking gun” declaration, the trial court nevertheless sentenced Godoy to 16 years’ to life imprisonment. Godoy appealed his conviction to the California Court of Appeal, arguing the trial court erred by (1) refusing to presume Juror 10’s communications prejudiced the verdict and (2) refusing to hold an evidentiary hearing on the alleged misconduct. However, the California Court of Appeal rejected both of these arguments on the merits and affirmed Godoy’s conviction. Gody again appealed, this time going to the Ninth Circuit Court of Appeals.
COURT’S ANALYSIS AND CONCLUSION
This Ninth Circuit’s opinion began with the following:
“One of the most fundamental rights in our system of criminal justice is the right to trial before an impartial jury. Its common law origin can be traced back to the Middle Ages. It was enshrined in the Sixth Amendment to the Constitution, and it has been embraced by the Supreme Court in numerous cases . . .”
Against this backdrop, the Ninth Circuit held that the California Court of Appeal decision violated the clearly established Supreme Court law that governs this case. It reasoned that under Mattox v. United States, due process does not tolerate any ground of suspicion that the administration of justice has been interfered with by external influence.
“Thus, when faced with allegations of improper contact between a juror and an outside party, courts apply a settled two-step framework,” said the Ninth Circuit. At step one, the court asks whether the contact was “possibly prejudicial,” meaning it had a tendency to be injurious to the defendant. If so, the contact is deemed presumptively prejudicial and the court proceeds to step two, where the burden rests heavily upon the State to establish the contact was, in fact, harmless.
If the State does not show harmlessness – or in other words, if the defendant was, in fact, harmed by the juror’s contact with an outside party – then the court must grant the defendant a new trial. However, when the prejudicial effect of the contact is unclear, then the trial court must hold a hearing to determine the circumstances of the contact, the impact thereof upon the juror, and whether or not it was prejudicial.
“Here, the California Court of Appeal failed to adhere to this framework in three key respects,” said the Ninth Circuit. First, although the State court correctly acknowledged at step one that N.L.’s declaration raised a presumption of prejudice, it never required the State to rebut that presumption at step two. It concluded instead that the presumption was rebutted because Godoy’s evidence failed to prove prejudice.”
The Ninth Circuit further reasoned that under Mattoxand Remmer, however, Mr. Godoy was not required to prove prejudice at step two. Once he triggered the presumption, the burden rested heavily upon the State to disprove prejudice. “Thus, in denying relief because Godoy’s evidence did not prove prejudice at step two, the State court acted contrary to well established law,” reasoned the Ninth Circuit.
Second, the California Court of Appeal decision to set aside the State court’s failure to hold the State to its burden was error. In other words, it was wrong for the California Court of Appeal to rely on the very same statement from N.L.’s declaration both to raise the presumption of prejudice and to rebut it. “This defies not only logic, but also the clearly established definition of a ‘presumption,’” reasoned the Ninth Circuit.
Third, the California Court of Appeal denied Godoy a hearing on prejudice under the wrong legal rule. It held he had to show a “strong possibility” of prejudice, but Remmer requires a hearing whenever, as here, the presumption attaches but the prejudicial effect of the contact is unclear from the record. “Because the state court’s decision contravened these bedrock principles, it was contrary to clearly established Supreme Court precedent under 28 U.S.C. § 2254(d)(1),” reasoned the Ninth Circuit.
The Ninth Circuit concluded that because Godoy showed the presumption of prejudice, he was entitled to the evidentiary hearing that he never had to begin with. With that, the Ninth Circuit reversed the judgment of the lower court and remanded the case back with instructions to hold an evidentiary hearing to determine the circumstances of Juror 10’s misconduct, the impact thereof upon the jury, and whether or not it was prejudicial.
My opinion? There’s a lot to be learned from this case. First, in all of my trials I admit a jury instruction prohibiting the jurors from accessing the internet and/or their smartphone devices. Jurors must rely on the evidence and the law and not be guided by outside influences. Second, I try and discuss the case with jurors immediately after they render verdicts. These conversations are very helpful teaching moments because jurors reveal what swayed their decisions. Also – and important to the defense of my clients – jurors may reveal whether their fellow jurors committed misconducts similar to the type described in this case.
Good decision. And kudos to the defense attorney who discovered the juror misconduct. Although my heart goes out to the friends and family of the murder victim, justice is not served when our courts fail to administer their obligation to give defendants a fair trial.
Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.
In State v. Woods, the WA Court of Appeals held that evidence of prostitution was properly admitted in the defendant’s prosecution for assault in the second degree. The Court reasoned these prior acts were necessary to explain to the jury why the victim was fearful of seeking help from her family or from the police.
BACKGROUND FACTS
The Defendant and alleged victim began their volatile relationship in 2009. Drug use, emotional abuse and physical abuse were allegedly involved. Later, allegations arose the Defendant forced the alleged victim to engage in prostitution.
In April of 2012, the alleged victim’s mother drove her to the hospital in the aftermath of an alleged assault. The alleged victim disclosed other recent assaults during a subsequent interview with a police detective.
During trial, the court admitted evidence of an August 2011 strangulation and the prostitution evidence. It determined that such evidence was admissible because it aided the jurors in understanding the nature of the relationship, motive, and intent, and helped to illuminate the alleged victim’s state of mind. The trial court also noted that testimony regarding prior assaults may assist the jury in understanding the dynamics of the domestic violence relationship and in assessing the alleged victim’s credibility.
The jury found the Defendant guilty. He timely appealed. The WA Court of Appeals granted review to resolve the issues presented.
THE COURT’S REASONING AND CONCLUSION.
ER 404(b) Evidence
The Court of Appeals reasoned that under ER 404(b), evidence of a defendant’s prior bad act is not admissible to prove the defendant’s character and to show action in conformity therewith. However, such evidence may be admissible for other purposes, depending on its relevance and the balancing of its probative value and danger of unfair prejudice. For evidence of a prior bad act to be admissible, a trial judge must (1) find by a preponderance of the evidence that the misconduct occurred, (2) identify the purpose for which the evidence is sought to be introduced, (3) determine whether the evidence is relevant to prove an element of the crime charged, and (4) weigh the probative value against the prejudicial effect.
Under this analysis, the Court of Appeals reasoned that the trial court’s rulings herein were correct. The alleged victim’s testimony as to how the Defendant forced her into prostitution and why she was unable to escape was necessary for the jurors to understand the dynamics of this domestic violence relationship. Furthermore, the court found that the complainant’s professed shame and fear associated with forced prostitution was an important factor for the jury to consider.
Ineffective Assistance of Counsel
The Court illustrated how ineffective assistance of counsel is established only when the defendant shows that (1) counsel’s performance, when considered in light of all the circumstances, fell below an objectively reasonable standard of performance, and (2) there is a reasonable probability that, but for counsel’s deficient performance, the result of the proceeding would have been different.
Under this analysis, the Court rejected the Defendant’s arguments that his counsel was ineffective for failing to object to the admission of the prostitution evidence. It reasoned there was nothing objectionable about this evidence because it was properly admitted pursuant to ER 404(b). Moreover, the Defendant’s counsel expressly deferred an objection to the prostitution evidence after stating that he viewed that evidence as presenting a valuable area for cross examination: “Rather, the record demonstrates that a tactical decision was made.”
The Defendant also believed he received ineffective assistance of counsel because his attorney failed to request a limiting instruction regarding the prostitution evidence. However, the Court of Appeals held this was also a strategic decision on the part of defense counsel. With that, the Court of Appeals held that Woods was not prejudiced and upheld his conviction.
Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.
In United States v. Yepiz, the Ninth Circuit Court of Appeals remanded the convictions for numerous defendants so that it may engage in the necessary fact-finding to ascertain whether a government’s witness received benefits that were undisclosed to the defendants at the time of trial.
The defendants are all alleged to be members or associates of the Vineland Boys (“VBS”), a gang located in Southern California. On November 30, 2005, a grand jury returned a 78-count first superseding indictment charging appellants and approximately forty other individuals with crimes arising out of their membership or association with VBS.
Trial commenced on August 9, 2006. On October 26, 2008, the jury returned a verdict of not guilty as to five counts, a mistrial as to one count, and a verdict of guilty as to the remaining counts. The defendants timely appealed their convictions and sentences. This case was vigorously litigated over the course of two-and-a-half months. It presented the federal district court with a gauntlet of complex legal questions, and required it to grapple with unique concerns to courtroom safety and logistics.
At trial, one of the government’s cooperating witnesses was Victor Bulgarian. In September of 2006, on direct examination, Bulgarian testified that he was previously arrested for possession and sale of methamphetamine in an unrelated case, and agreed to cooperate with law enforcement in exchange for a lesser sentence, and a grant of immunity for his testimony as a government witness.
Bulgarian testified to having received no benefits from the government in exchange for his testimony. However, on cross-examination, Bulgarian testified to having received $5,000 in cash from the government after he testified to the grand jury in this case. Defendants noted that this testimony directly contravened a letter the government sent to them asserting that no witnesses received any benefits from the government in exchange for their testimony. The government acknowledged that it was “a glaring mistake,” but argued that the error was cured because defendants had ample opportunity to cross examine Bulgarian on the subject of the $5,000 payment. Defendants did not raise the issue again either at trial or in a post-trial motion.
Approximately three years later, on August 20, 2009, Bulgarian testified in the trial of defendant Horacio Yepiz. On direct examination, Bulgarian once again testified to having received no benefit from the government in return for his testimony. On cross examination, however, Bulgarian testified that since his arrest for drug-related crimes in 2004, he had received roughly $100,000 to $200,000 in cash from five different law enforcement agencies, although he was unable to give an exact figure. He explained that he was able to solicit paid work from these agencies whenever he wanted (“I decide when I want to work, and when I work, I get paid.”). Indeed, he testified to having received $800 for three hours of work the week prior.
Appellants now argue that the government violated Brady v. Maryland by failing to disclose the full extent of the benefits Bulgarian received at trial. For those who don’t know, Brady v. Maryland was a landmark United States Supreme Court case that established that the prosecution must turn over all evidence that might exonerate the defendant (exculpatory evidence) to the defense.
On Appeal, the Ninth Circuit reasoned that, under Brady, the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.
The Ninth Circuit further reasoned that in order to prevail on a Brady claim, the defendant must show that the evidence was material. Materiality is satisfied when “there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A ‘reasonable probability’ is a probability sufficient to undermine confidence in the outcome.”
Here, the Ninth Circuit ruled that the government’s attempts to minimize the significance of Bulgarian’s testimony are not persuasive in light of the record:
“While some of Bulgarian’s testimony was independently corroborated, it nonetheless played a substantial role in the government’s case-in-chief. In particular, Bulgarian’s testimony was relied upon heavily by the government to show that VBS was a ‘criminal enterprise’ under RICO. Therefore, had the alleged Brady materials been made available to appellants at trial, there is a “reasonable probability” that the result of the proceeding would have been altered.”
With that, and In light of the disputed facts surrounding defendants’ Brady claim, the Ninth Circuit remanded the convictions to the district court so that it may engage in the necessary fact-finding to ascertain whether Mr. Bulgarian received benefits that were undisclosed to appellants at the time of trial, and if so, whether Brady was violated as to each convicted count.
My opinion? Good decision. Since Brady was decided in 1963, the U.S. Supreme Court has required that prosecutors and police officers disclose evidence that impeaches the credibility of any state witness, including police officers. Examples of impeachment evidence include false testimony, misrepresentations made in court documents, false information in police reports and internal police disciplinary proceedings.
Unfortunately, that is not being done. There is no uniform system compiling Brady data; each county’s prosecuting attorney has different methods for assembling Brady information and different perspectives on when disclosure is constitutionally required. Naturally, this creates problems for defense counsel seeking exculpatory information from prosecutors and law enforcement agencies. Fortunately, competent defense counsel has ways of overcoming these challenges, as demonstrated by the excellent representation given to the defendants in this case.
Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.
