Legal Pad

DA Regrets Misconduct, Supreme Court Says Not So Fast

[Scott Graham]

When the Sixth District Court of Appeal found “flagrant” prosecutorial misconduct in the case of Daniel Shazier last December, the Santa Clara County district attorney’s office was contrite.

"Based on the court's opinion, if I had it to do over again, I would make my arguments differently,” Chief Assistant DA Jay Boyarsky told the San Jose Mercury News at the time.

But the California attorney general’s office, which is prosecuting the appeal, didn’t have the same misgivings. Nor may the California Supreme Court, which granted the AG’s petition for review this week by a 4-3 vote.

The court of appeal “distorted the substantive standard for misconduct claims by ignoring material facts in order to infer the most damaging inference from the prosecutor’s comments,” Deputy Attorney General Bridget Billeter wrote in her petition.

High Court Weighs Domestic Violence Case That Helped Unseat Hallinan

[Scott Graham]

Ten years ago, the domestic violence murder of Claire Joyce Tempongko helped bring down San Francisco District Attorney Terence Hallinan and put Kamala Harris in his place. Five years later, Harris' office put Tempongko's killer behind bars.

On Tuesday the tragedy came full circle, as the California attorney general's office — now under Harris' leadership — sought to preserve the conviction of Tare Beltran before the California Supreme Court.

A divided appellate panel had thrown out the verdict, but Chief Justice Tani Cantil-Sakauye sounded eager to reinstate it, even objecting at one point to the description of Tempongko and Beltran's relationship as stormy. "When you say 'stormy,' we're using the wrong word," she said. This, she declared, was a domestic violence killing. "The storminess is all on his side."

Two Trials, Two Reversals for Prosecutorial Misconduct

[Scott Graham]

Getting a judgment actually reversed for prosecutorial misconduct is rare. How about twice in the same case?

On Thursday, the Sixth District Court of Appeal took the Santa Clara County district attorney's office to the woodshed for a second time in the case of Dariel Shazier, an alleged sexually violent predator. In 2006, the appellate court threw out Shazier's commitment order as an SVP based on former prosecutor Benjamin Field's having deliberately violated an in limine motion barring the discussion of punishment.

The DA's office retried the case, again obtained a commitment order, and is now once again in flagrante reverso. This time Chief Assistant DA Jay Boyarsky, who tried the case when he was a line DA, is taking the blame. Sixth District PJ Conrad Rushing's opinion says he committed "flagrant misconduct" by warning jurors to think about how friends and acquaintances would react to an acquittal.

"Public opinion is not a proper consideration for a jury," Rushing wrote in People v. Shazier. "This reasoning has been condemned as faulty since the time of ancient Greece."

Boyarsky also implyied Shazier had committed other crimes and told jurors Shazier was "grooming" them the same way he did his child victims.

Boyarsky and District Attorney Jeff Rosen graciously told the San Jose Mercury News that they respect the court's decision. "Any prosecutor in my office may err," Rosen says in the Mercury News' detailed article, "and when we do, we learn from it and improve."

Judge Alfonso Fernandez's also took some heat, though not as much as Boyarsky, for his handling of the case. "We observe that not one of [defense] counsel's well-taken objections was sustained by the court," Rushing wrote. "The court erred in overruling these objections."

 

Appellate Ruling So Wrong, It Must Be Accident, Counsel Says

[Scott Graham]

Redwood City attorney Paul Carroll has a good issue that might get him in front of the California Supreme Court. But the way he’s presenting it probably won’t win him any friends at the Third District Court of Appeal.

Carroll’s Nov. 6 petition in People v. Wooten, S206473, points out that the Third District’s opinion in the case sets up a direct conflict with a 2001 opinion from the First District. So far, so good.

But, Carroll continues, the court’s discussion of the case is “with respect, wildly inaccurate. Indeed, it is so confused that we believe there has been some sort of inadvertent error.”

That may not sit well with Third District Justice Andrea Hoch, the author of Wooten -- especially given that Carroll did not petition for rehearing at the Third District before going to the state’s high court.

Carroll said Wednesday that he had not discovered the error until after the time to petition for rehearing, and “I should have.” But he had no regrets about his critique, saying the law clerk or judge who drafted the opinion “made an incredible error.”

Sex, Misstatements and Videotape Lead to Tough Argument

[Scott Graham]

Sometimes oral argument is just an ass-kicking, and there's not much counsel can do but take their lumps.

That was the case Thursday for Robert Miskell, an assistant U.S. attorney from Tucson who was defending Christopher Garcia's 40-year sentence for aggravated child sexual abuse before the Ninth Circuit.

Miskell started off on bad footing. During briefing the government had asserted, and then retracted, that the sentencing judge had watched video recordings of two other victims' statements before tacking on a 10-year enhancement. Miskell had barely uttered "May it please the court" before Judge Andrew Kleinfeld brought up the subject.

"Was there a videotape?" he asked.

"There's a videotape," Miskell started to explain, "but there's no ..."

"Did the government give the videotape to the court?" Kleinfeld asked.

No, Miskell confirmed.

"So the brief said it, but it wasn’t so, and you corrected that?" Kleinfeld said.

"That is correct," said Miskell, who might as well have been sitting in a witness chair.

But the fun was only beginning for him, as Kleinfeld revealed that the Ninth Circuit had discovered another factual error in the briefs.

Saratoga Lawyer Convicted in Investment Scheme

[Ginny LaRoe]

A Saratoga lawyer was convicted Wednesday of wire fraud for defrauding 30 people of just over $1 million in an investment scheme.

Federal prosecutors secured a five-count verdict against David Prince, 49, who lost money through risk options trading and used investor money to make his own credit card payments and to lease a Mercedes Benz. Prosecutors also said he he used his position as a lawyer to assure investors about the legality of what he was doing.  

The jury deadlocked on another another two counts after asking U.S. District Judge Charles Breyer on Tuesday for further guidance on the meaning of "intent." The judge reminded them of past jury instructions and sent them back for more deliberations.

San Jose-based Assistant U.S. Attorneys Joseph Fazioli and Allison Danner handled the three-week trial.

Prince's current status with the California bar is active. He previously had been disciplined for misconduct involving two clients. In 2007 the State Bar placed him on probation for two years and ordered him to pay several thousand dollars in restitution for his conduct in two different matters.

 

Gascon, Adachi Find Too Much Common Ground at USF

[Scott Graham]

"I'm here because I believe our criminal justice system is broken."

If Legal Pad told you those words were uttered at a forum between San Francisco District Attorney George Gascon and Public Defender Jeff Adachi, you'd bet it was Adachi who made the statement, right?

Nope, that was Gascon, the former police chief-turned-DA who looks the part of an old-school, lock-em-up prosecutor but  sounds like a kinder, gentler version of Kamala Harris.

With Gascon and Adachi sharing the stage Thursday at University of San Francisco School of Law, and a crime lab scandal and videotaped illegal searches in recent headlines, it was enough to make a legal journalist salivate.

"The reality is this system has been morally bankrupt for many years," said Adachi. Yeah! You go Jeff!

Oh wait, no, that was Gascon again.

Circuit Says Parole Denial Not Supported by 'Some Evidence'

[Greg Mitchell]

In a 2-1 decision today, the Ninth Circuit U.S. Court of Appeals said Gov. Arnold Schwarzenegger didn't meet the "some evidence" standard in 2004 when he overtuned parole for a murderer-turned-model prisoner.

Instead, wrote Senior Judge Betty Fletcher, the governor relied on the bare facts of Fred McCullough's 1982 offense: the bludgeoning of a man asleep in his car for money to buy drugs. In 2007, U.S. District Judge Marilyn Hall Patel said that didn't meet the requirement that the governor present "some evidence" that McCullough was still dangerous.

In dissent, Judge Johnnie Rawlinson said Fletcher's decision can't be squared with Ninth Circuit precedent, citing another parole denial case in which a panel said the offense itself could be relied on so long as the denial was based on "factors beyond the minimum elements of the crime." In McCullough's case, Rawlinson noted, the governor cited the "especially heinous" nature of the murder. Under the federal precedents, that should be enough, she wrote.

McCullough, who was released a few years ago pending appeal and, the court notes, has gotten rave reviews from his employer, was represented by Daniel Bookin, a white-collar defense lawyer at O'Melveny & Myers.

Cyrus Sentencing Closes Book on Page Street Gang Case

[Ginny LaRoe]

The Joseph Russoniello days are over, but the way certain criminal prosecutions were handled under his tenure still gets defense attorneys fired up.

That was evident today during the sentencing of convicted Page Street gang member Dennis Cyrus. While U.S. District Judge Maxine Chesney worked her way through complicating sentencing matters involving numerous life terms and disputes over newly discovered evidence, gang prosecutors and the a pair of defense attorneys mostly kept things civil and moving along.

But when Chesney noted she wasn’t convinced Cyrus had accepted responsibility for his actions, defense attorney James Scott Thomson seemed to erupt. “He offered to give up his life so that no one would have to go trial,” the defense attorney said, before engaging in a little rant about Russoniello’s handling of gang cases.

Prosecutors Talk About Doing the Media Dance

[Ginny LaRoe]

There’s certainly no shortage of opinions on how prosecutors should deal with the media. Officially, of course, they rarely comment on anything. But, really, there’s always some sort of relationship between reporters and the chief law enforcers.

Current and former prosecutors, defense attorneys, journalists and a law professor had a lively debate on the topic today during a panel discussion at Hastings College of the Law. The panel was part of the program on ABA standards for criminal litigation.

California Chief Assistant Attorney General Dane Gillette, once dubbed the “dean of the death penalty,” took a hard-line approach, saying prosecutors really shouldn’t talk about cases at all.