Appellate Court upholds recusal of entire Orange County DA office

“A California appeals court issued a sharply worded rebuke to the state Attorney General’s office yesterday in a high-profile case, the Orange County Register reported.
The ruling came in the high-profile murder trial of Scott Dekraai, who in 2011 shot up the hair salon where his former wife was working, killing eight people and injuring one. His public defender, Scott Sanders, uncovered evidence that sheriff’s deputies were using jailhouse informants to solicit incriminating statements from high-profile defendants, and that prosecutors failed to disclose the practice. If true, both would violate defendants’ civil rights. After six months of evidentiary hearings, trial judge Thomas Goethals recused all the prosecutors in Orange County and gave the case to the state Attorney General’s office, which appealed the order.
In its ruling Tuesday upholding the trial judge’s decision in People v. Dekraai (PDF), California’s Fourth District Court of Appeal, Division Three, chastised the AG’s office for the appeal, using italic script to call part of its arguments “nonsense.””

“During discovery in Dekraai’s case, Sanders realized that the same jailhouse informant, supposedly a volunteer who expected nothing in return, was also informing on another high-profile client, Daniel Wozniak. Sanders began looking into the use of informants in Orange County and discovered evidence showing that illegal use of jailhouse informants may go back decades in Orange County. This would have been despite the U.S. Supreme Court’s 1964 ruling in Massiah v. United States, which expressly forbids the practice. Prosecutors had not turned over any of it in discovery and indeed resisted related discovery requests, Sanders said, which would violate their obligations under 1963’s Brady v. Maryland.”

41% error rate in background checks

41% error rate in background checks

This  article explains why you should fear a criminal background check, even if you’ve never done anything wrong.  It documents that at least one study found a 41% error rate in background checks.  Errors that harmed the consumer.

An all too often problem occurs in these hard economic times. The criminal background check. The potential Employer has you sign a document. Granting permission to run a background check. A couple of years ago, you got a misdemeanor. For example, Possession of marijuana. You paid your fine and court costs, contributing to the judicial fund, the court fund, the sheriff’s fund, and went on with your life. Little did you know, an error was made  somewhere along the way and you have been labeled a felon.

A few years down the road, you apply for a job. Sign the permission to run a background check. And are denied the job. For the stated reason there is a felony on your record.  (Note:  the potential employer must first give you the opportunity to correct the flag, if it is in error, before denying you the job).

A felony? But it was just misdemeanor possession of such a small quantity of pot, the judge merely imposed a fine. Not even probation. Now what.

The FCRA (Fair Credit Reporting Act), a federal law codified at 15 U.S.C. § 1681 et seq. applies. Before denying you the job for the felony found on your record, the employer must give you written notice of what the flag was, and the name and address of the company that performed the background check. You have a right to dispute it. Do so. And provide the court record that shows it was a misdemeanor. The company has thirty days to respond. And if the background check company doesn’t respond and doesn’t fix the error, sue them in federal court.

Also. Report the company to the FTC.  For misreporting information on your background whether you sue or not.

For some guidance. Read this information provided by the FTC.

The imaginary “check em out” exception to the Fourth Amendment

The imaginary “check em out” exception to the Fourth Amendment

Law enforcement. Once in awhile needs reminders and refresher courses. On the constraints placed on them while on armed patrol in our communities.

There is no exception to the Fourth Amendment that permit hunches, generalized claims of lawlessness and disorder, broad brush strokes of “high crime area” that licenses law enforcement to check things out or perform a look see. With or without a warrant. Law enforcement is not the community baby sitter.  It is an armed, uniformed, trained force.  Authorized to enforce the law  … at gunpoint, and tragically, sometimes, by a gunshot to the head. Police must enforce the law….within the law. The ultimate Freedoms are at stake…not to be confined. And not to be dead.  Thus, law enforcement is subject to strict constitutional constraints. It simply has to be. We are not a militarized society.  As a result, they don’t get to go round just checking up on people.  That is not a legal act of enforcement. That’s babysitting. This ain’t nursery school.  This is our country. And man. We enjoy the greatest freedoms in the world. Let’s keep it that way.

The constitutional requirement of articulable facts of a minimum of reasonable suspicion for an minimal investigatory detention and articulable facts of probable cause for a full blown search of seizure is alive and well. It is the law of the land, including within localized parishes of Louisiana.

“The particular legal issue presented here has long been resolved by the United States Supreme Court in an unbroken line of cases cited often in the well-settled jurisprudence of this State. The issue is simple: Can a police officer conduct an investigatory stop and detain citizens otherwise legally operating motor vehicles on the public highways or private roads in this State solely because past crimes or suspicious activities have occurred in the area where motorists are traveling?

The answer is not even close: “No.”

THERE IS SIMPLY NO “CHECK-EM-OUT” exception to this Constitutional prohibition.

In this case there were no exigencies, i.e. there was no terrorist on the loose, no amber alert, no recent criminal activity in the area, no recent jail-break, no report of a truck matching the description of the one driven by Parker as being involved in any criminal activity. Officer Godwin could articulate nothing to establish a particularized and objective basis for suspecting Parker of criminal activity.” (Emphasis added)

Excerpt from the appeal of a black woman. Who fought a traffic stop. For six years. In Louisiana.

Following are links to this and another  Louisiana appellate decision. Both affirmed the continued viability in this state of the federal constitutional freedom from detentions, searches and seizures, predicated merely on hunches, vague or conclusory claims of high crimes and misdemeanors, and self enobled proclamations to take a “look see” or to “check em out.”

One is a one page grant of a writ which reversed the trial court’s upholding a warrant based on a sheriff’s desire to take a “look see” through a resident’s entire swath of computers and cell phones, including those of his child and wife, because an IP trace of an anonymous whistle blower site which identified some shenanigans within local government led to his home.  For an article on what happened, read this article.   Or this one from Louisiana Voice, by Tom Aswell, who bird dogged what happened.

The other decision, excerpted above, details the six year nightmare of a young black woman whom a deputy just wanted to check out. More details and analysis are available in an article posted by the Marshall Project.





Pleading No Contest or Nolo Contendere

Pleading No Contest or Nolo Contendere

How do you wish to plead? 

“I do not wish to contend.” Defendant who enters a plea of nolo contendere neither admits nor disputes the charge. A plea of no contest allows defendant to avoid admitting facts, which subsequently could be used in another action. Notably, neither a plea of no contest nor a guilty plea per se bars a federal civil rights action for the use of excessive force during arrest.1 While scholars debate the propriety of no contest pleas,2 they remain viable options in all courts, but are always subject to approval by the court.

A no contest plea has the same effect in the criminal prosecution as a guilty plea or conviction. It subjects defendant to the same fines, costs, and forfeitures; it becomes a criminal record.  It may enhance a subsequent sentence. A no contest plea to a felony bars the right to possess a gun. If the charge is a registrable sex offense, all the registration requirements apply. Whatever the effects of a guilty plea or a conviction after trial on the substantive charge are the same for a no contest plea.

The Supreme Court endorses plea bargaining and no contest pleas.3  However, state law (and a court’s own practices) determines whether and how a defendant may plead no contest.  Generally, courts are amenable, but no contest pleas are not a right.  Some judges will not accept such pleas if the prosecution objects or for other reasons. In some jurisdictions, a no contest plea prevents a defendant from admission to any diversion programs. The federal rules allow a nolo contendere plea only if the court considers the parties’ views and the public interest in the effective administration of justice.4

The effects of a no contest plea in a subsequent civil action or on professional licenses varies across jurisdictions, federal and state, and depends on whether the charge was a felony or misdemeanor, and in some jurisdictions, it depends on the seriousness of the charge. Under the federal rules of evidence (and in those states that parallel those rules), a no contest plea is not admissible in a civil action, subject to specified exceptions.5 In California, a no contest plea is deemed a conviction with regard to licensing for pharmacists, but a no contest plea to a misdemeanor cannot be used as evidence against the defendant in a civil case. This is generally the prevailing rule.

While all pleas may be challenged on appeal for voluntariness, the effect on the right to appeal other issues depends on the terms of the plea deal and otherwise varies across jurisdictions.  In Texas, for example, a defendant who entered a no contest plea may appeal only from written pretrial motions actually ruled upon by the court.6 This appears to be the prevailing rule.

The related Alford7 plea differs from the plea of no contest in that the defendant maintains innocence, but acknowledges the prosecution has sufficient evidence to convict at trial. No appeal is allowed, except to challenge the voluntariness of the plea. Most state courts hold that an Alford plea is the functional equivalent of a regular guilty plea, not just in the criminal case, but also in subsequent litigation, criminal or civil. Presently, only Indiana, Michigan and New Jersey, do not allow Alford pleas.

1 Haring v. Prosise, 462 U.S. 306 (1983).
2 See, e.g., Stephanos Bibas, Harmonizing Substantive-Criminal-Law Values and Criminal Procedure: The Case of Alford and Nolo Contendere Pleas, 88 Cornell L. Rev. 1361 (2003) Available at:
3 See Santobello v. New York, 404 U.S. 257, 260-61 (1971)
4 Fed. R. Crim. P. 11.
5 Fed. R. Evid. 410(a) and (b).
6 Tex. Rules of App. Proc. Rule 25.2(a).
7 North Carolina v. Alford, 400 U.S. 25 (1970).

IMAGE:  Jury box, Howard M. Metzenbaum U.S. Courthouse, Cleveland, Ohio by Carol Highsmith (image is in the public domain)

The psychological torture of unemployment

The psychological torture of unemployment

I received a copy of this study on the psychological effects of being unemployed and underemployed. It resonated with me. I’ve struggled at various times. To survive. I recently wrote about the negative impacts on communities of paramilitary policing and profitizing policing. I’ve also read a study on the true cause of addiction…feeling left out of society as it spins and climbs

I received it…as a member of an email ring for criminal defense lawyers. This was sent to help at sentencing hearings.

As sad as it is, it’s informative and crucial that the word gets out


At what price criminalized tail lights?

At what price criminalized tail lights?

An eyewitness said “it looked like they killed a cow”.

Three deputies. Beat this man to a pulp. In front of his wife. And his two children. Inside of his own store. From where he eked out a living. Beat him. Choked him. Pepper sprayed him. Threw his head through dry wall. Through a glass shop display case. Beat him and choked him again. And pepper sprayed him. Again. On his lacerations and wounds

Dragged him outside. Handcuffed him. Forced him to his knees. And never called for an ambulance.

What was the true impetus? Was it really the potentially expired license of the employee driving a store truck in the store’s parking lot? Nah. Per the script too often played out across our nation, that minor infraction was the deputy’s cover. His pass. For unleashing his hate. His hate of brown skin. And the fact the brown skinned sister of the store owner had committed other minor infractions without severe punishment….selling bags of oranges along roadsides and from medians. To willing and citrus desirous purchasers. That deputy also ran the guy’s name… Hoping to find some warrant for some minor traffic or driving violation. To further justify his felonious purpose. He found nothing, but an expired driver’s license.  The discretion lay with the deputy….and he was full of his authority that day, so he called for a tow truck.   And more.  He called for minions.  To help fulfill his stated felonious purpose. Calling the owner a chicken shit mother fucking Mexican and announced he was going to beat his ass.  And, with the help of his boys, boy, did he.

The deputies then arrested Mr. Navarro.  Delayed taking him to the hospital and once there, denied medical access for a few hours.  They booked him and the DA filed charges.  Upon filing what is known in California as a Pitchess motion (pursuant to which the state has to turnover the involved officers’ complaint histories), the DA dropped all charges and the case was dismissed in the interest of justice.

Read my opposition to summary judgment memorandum 8-7 OPP MSJ RAFAEL FINALx  I will also upload the supplemental opposition as the district court requested one to address further the nuances of one of the claims.

It is time for every town America to take a look. A deep. Hard. Serious look. At all those ordinances. That penalize the most minor of conduct. Every state America…too…take a look at the 1001 reasons cops pull people over everyday. Tags, lights, tinted windows, loud music, seat belts, turn signals, motor vehicle inspection stickers, a burnt out little light bulb over the license plate, etc.

Selling CDs and cigarettes. Little free libraries.  What great social harm is there? At what cost to society do we want such nonsense criminalized to the point people cannot pay their rent, and, worse, die?

Are these minor human “misbehaviors” worth the violence that can ensue? We always hear about how dangerous to an officer a vehicle, and even a pedestrian, stop can be…and we have all seen how dangerous it is to the driver, the passenger, and the pedestrian.  Well, the solution isn’t a trigger happy scared cop. Maybe the solution is to decriminalize the so called infraction. No. Stop. Allowed. For such minor government grievances.

Send a letter.  Give the person a few weeks to remedy the infraction.  Send a follow up letter, if necessary.  Advise that an appropriate and not some disproportionate fine will be imposed if the matter is not addressed.  Provide information on where a person could get help, if needed.  And in all cases, use discretion. Be mindful of the constitution.  Gah, how civil. That’s what Louisiana does for the far more serious environmental infractions committed every single day in the oilfields.  They send compliance letters….sometimes.  Less often, they send a follow up letter. And more often, they just look the other way. See the link, infra, to the legislative auditor report on the growing number of financially insecure orphaned wells taxpayers now are responsible for handling.  Perhaps it’s time to look the other way from innocuous human behaviors, just as we do corporate wrongs.  To decriminalize the minor human misbehaviors, just as most corporate wrongs are treated as mere infractions, worthy of but a letter.

One journalist aptly reminded us that the decision to conduct a stop, whether of a pedestrian or a car, is wholly within the officer’s discretion. Indeed, the Supreme Court has ruled there is no constitutional duty to arrest anyone, no matter what. In an article entitled, “It’s Time to End the Routine Traffic Stop,” the writer points to proper urban design and engineering as the smarter solutions speeding and reckless driving, not increased fines and penalties. I submit, simply timing traffic lights would eliminate a significant amount of vehicle speeding and recklessness, even distraction. The writer agrees that for other innocuous behaviors, it is far more proportional simply to mail a citation, perhaps complete with a photograph taken by the patrol car’s dash cameras.

While the state of Louisiana gives oil and gas a virtual pass, Louisiana’s local political subdivisions go nuts with their perceived powers….over absolutely nothing.  For those local to Shreveport, who can forget the insanity on public display when the local metropolitan commission threatened a resident with significant fines….over a little free library? Calling it a “commercial enterprise” and contending it violated the zoning ordinance, exposing the owner to a $500/day penalty.  And then witness our leaders engage in senseless gymnastics trying to cover this huge guffaw, with yet another ordinance?

Shreveport. Struck again. This time a man in a wheelchair rolling in the street because an officer saw he had something in his lap, thus, under a perverted view of Terry v. Ohio, a black man with something in his hand, might be a thief.   The officer left him with a citation for anther crime….”walking” in the street.   “Walking”!  In other words, for, “walking” while black.  It’s a crime in Shrevesville to walk anywhere but a sidewalk.  Keep in mind, this guy was using the street because  what Shrevesville called a sidewalk was fit only for cross country bike jumpers.

The Shreveport wheelchair stop…problematic  on so many levels.  The cop stopped him because he had something in his hands.  That, I submit, is not reasonable suspicion of anything  other than he has something of HIS, not a stolen object, in his hands.  Oh but we all have read police reports…he had something in his hands in a high crime neighborhood. A neighborhood ravaged by unemployment because of city policies that favor only the rich, friends, and families.   And we’ve all stood before judges who literally don’t give a hoot about the constitution, and who gavel such stops as reasonable. Every day. At what price to humanity?   The courts. Have been complicit.  Whittling away and de-fanging the fourth amendment, daily.

It is  past time for some Fourth Amendment dental work. The Guardian published an article noting that the erosion of the Fourth Amendment has led to more and more and more stops and searches, of vehicles and pedestrians.  The article is entitled Beyond #BlackLivesMatter: police reform must be bolstered by legal action.  Reform demands we revive the Fourth Amendment. The author implores indigent defense attorneys to challenge the line of decisions that whittled away the protections of the Fourth Amendment.  But first, don’t we need to pay indigent defenders fairly and lighten their loads down to at least ABA standards?  As an indigent defender, my caseload was more than double ABA standards, notwithstanding the direct order of the Louisiana Supreme Court long ago in State v. Peart.  And still…decades later….the indigent defense system is in tatters.

The obstacle to reform…is money.  Cold hard cash.  There’s a reason for high incarceration and citation rates.  Cash.

Louisiana. I’m looking at you. Louisiana is the incarceration capital of the world. Louisiana has the highest sales taxes in the nation. Shreveport, Louisiana, has the highest property taxes in the state. Every town here rapes its citizenry and visitors. Taxing the hell out of everyone, even its poorest, with fines, penalties, court costs. Why? To line city coffers so it can contract with favored ones? What kind of government does that? A bad one. A very bad one.

In spite of a constitutional directive to the state legislature to fund indigent defense, and to ensure indigent defendants have counsel AND to ensure indigent defense counsel are compensated, reasonably, Louisiana’s indigent defense system is in free fall.  I’ve sat in court and watched, as judges rattle off the words, “if you cannot afford a lawyer, the court will appoint counsel, free of charge” and in the next breath, order an indigent defender who pleads to pay, in addition to fines and court costs, as much as $1000.00 to the indigent defense office.  An indigent defender … One who by definition cannot afford a lawyer.

I pulled some numbers from the 2015 Louisiana Supreme Court annual report.  Apropos Baton Rouge making some very ugly headlines right now, I pulled numbers for Baton Rouge, east Baton Rouge parish, and of course Shreveport and Caddo parish. These are the 2015 criminal and traffic filings for these four jurisdictions.  I included population figures for reference, relying on the United States census available at


Just let those figures sink in   Over 90,000 traffic filings in Baton Rouge?  That is almost a 50% rate.  If you drive in Baton Rouge, flip a coin to determine if you’re gonna get stopped and summoned to a court date.

A recent article exposed the excessive practices of Gretna, Louisiana. Gretna police previously made horrific headlines during Katrina, firing on folks who attempted to get out of flooded New Orleans by walking across the bridge to Gretna. Gretna police stopped them. With force. Now Gretna made headlines, again.  This time for its excessive policing and fine practices, imposed on its own residents. It is the arrest capital of America.

“An expensive, years-long entanglement with this [Gretna] system can begin with an alleged infraction as minor as turning without a blinker. Eric Cado, a 25-year-old black man, was pulled over in November 2011 in Jefferson Parish for not wearing a seatbelt. After a series of missed court dates, unpaid fines, subsequent warrants for his arrest and a day in jail, Cado owed $1,200 plus the $500 bond for his release, which he finally paid off in 2014.


“In 2013, Ferguson took in $2.46 million in municipal court fines and fees, or close to $117 for every resident. By comparison, Gretna, which is slightly smaller than Ferguson, took in $5.77 million in municipal court fines and fees—or about $324 per resident—in its 2013-14 fiscal year, according to Gretna’s 2014 fiscal year financial report. (Gretna’s finance director disputes this figure, arguing that it is $2.12 million, but has refused to explain her calculation. Norton Francis, a senior research associate with the Urban Institute’s State and Local Finance Initiative agreed that Fusion’s calculation and the comparison with Ferguson are accurate.)”

Meanwhile the state government imposes, what, a $25 fine on the oil and gas industry for far more serious operations or environmental ills? Worse, it doesn’t even perform its duty to inspect wells to ensure compliance, as detailed in this legislative auditor report.  Oh my.  The report notes Louisiana only bothered to collect approximately $130,000.00 in fines.  And, as further documented by the Louisiana Legislative auditor, the State then never bothers to collect half the taxes and royalties due it from the industry. The lobby group behind all this, always has an “explanation;” meanwhile, legislators who try, see their bills killed.

Why isn’t DNR and the Office of Conservation armed with military gear like street cops…and out enforcing what few regulations we have against the industry? Law enforcement does not hesitate to don that gear to execute warrants for even innocuous offenses, including missing a court date or getting behind on fines and court costs.

In a report ironically and timely entitled “Excessive Fine Enforcement,”  in 2007, the Louisiana legislative auditor looked into Louisiana’s 250 plus so called “mayors courts” … which tax the hell out of anyone passing through or living there (read about the woman who spent six years fighting a Louisiana mayor’s court traffic ticket)…. and did nothing; zero; nada; notwithstanding the auditor acknowledged the unconstitutionality of using courts and fines and court costs to fund towns. (I have discussed that in another blog post, that asks, Is Louisiana Broken?) As the auditor reported, he can’t even discern how many millions of dollars these mayors courts take in, because the data they report is inconsistent.

Somewhat contradictorily to that report, in 2014, the legislative auditor, in a quest to encourage stricter enforcement and collection of fines and court costs, by parish/district courts, gathered information on the court costs brought in by parish/district courts (not including municipal courts), again noting it cannot be sure it is accurate, (due to failures in reporting); it reported that those courts collected court costs and fines in excess of $100,000,000.00, annually. The auditor also recommended that district courts do more to collect more.

Meanwhile, the state of Louisiana collected $238 million in mineral royalty revenue.  Apropos the figures outlined above, it seems ludicrous for any state office to advocate for more fines on the backs of one of the poorest electorates in the nation.  Especially since it cannot be bothered to collect severance taxes due it from oil and gas operators.

Something is terribly wrong.  Violations by oil and gas companies, including environmental, are simply overlooked; meanwhile, parishes and towns and mayors courts are raking in serious cash off the backs of citizens.

The U.S. Department of Justice scolded Ferguson, for these very practices, in its report issued upon its investigation into Ferguson, stating “Ferguson’s law enforcement practices are shaped by the City’s focus on revenue rather than by public safety needs. This emphasis on revenue has compromised the institutional character of Ferguson’s police department, contributing to a pattern of unconstitutional policing, and has also shaped its municipal court, leading to procedures that raise due process concerns and inflict unnecessary harm on members of the Ferguson community.” Investigation of the Ferguson Police Department (Mar 4, 2015).

In 2016, the DOJ issued a letter to every town, America, telling them, to knock these practices off. Until we take the profit out of so called criminal justice, nothing will change.  The people cannot take this, anymore.  It’s oppressive.  It’s bad for business.

In the aftermath of the killing of Alton Sterling and Philando Castile, I am not alone in raising these issues.  Salon posted a great article at this link.   A Yale law professor’s view was published by the Atlantic at this link.

Epilogue. July 2016 Mayhem.  All of this leads to the mayhem we are witness to, right now, July, 2016.  We’ve seen our civil rights whittled away by congress and SCOTUS. The fourth amendment? Hah, look what Thomas did in Utah v Strieff. And, now, but a shell voting rights act remains…the Court butchered it. Think prosecutors and courts are the answer?  Could be, but not.  Prosecutorial misconduct…is an epidemic and the courts sit on their robes, per Alex Kozinski, a respected jurist and brilliant legal mind (I discuss prosecutorial problems in another post where I ask, is Louisiana broken and in a post about prosecutorial misconduct and spoliation.

Meanwhile. We can’t regulate banks. Oil and gas industry gets a pass. Fracking is exempt from clean air and water acts, but not your sprinkler run off. But, cities and towns every town America, have criminalized innocuous behaviors, fining, penalizing, even locking folks up..for minor infractions…and what for? Profit for the city and its favored ones. Cops use all these infractions as ruses to shake people down. Police departments militarized. As politicos preach fear. 9-11, the terrorist, the Muslim, crime, the this boogeyman, the that boogeyman…as unions were busted, wages fell, and our shift away from a manufacturing economy to a service economy, where service is non existent. Folks working at low paying jobs, sometimes two sometimes more. Rents and housing prices rising. Every thing prices rising. Groceries. Milk is $5/gallon. Where I live unemployment is real and if you’re lucky to find work, it might pay at best $600 a week. And then you get a parking ticket. A busted tail light. Fines and court costs total $700. Ya can’t pay you go to jail. And there goes that great job.

Our economy? From manufacturing. To non service service. To the incarceration capital of the world. Video after video of folks shot, beat, kicked. While politicians travel, and gavel, and babble. And only ensure guns are everywhere. Open carry. The Dallas sniper walked right by crowds with his weapon(s).

In sum, this is an epidemic that was born in Los Angeles, with its paramilitary style of policing, that has swept our nation, due to two stupid wars and excess military surplus gear sold to police departments of every town, America, and paid for with economic stimulus money and the fact that this nation, the highest incarceration rate in the world, has monetized policing, imprisonment, and criminal justice, while gutting indigent defense, leaving folks helpless and hopeless.


Post script.   Read this study to learn just how hopeless folks left out of the economic wave and caught up over and over with stops and fines feel:




The Epidemic of Prosecutorial Misconduct. Spoliation. Withheld evidence.

The Epidemic of Prosecutorial Misconduct.  Spoliation. Withheld evidence.

Cases every criminal lawyer needs to know:  Brady v. Maryland   Kyle v. Whitley  Giglio v. United States  Napue v. Illinois  Arizona v. Youngblood   And the dissent in US v. Olsen.

In this post, I provide links to opinions and discussions on prosecutorial misconduct, including the subornation of perjury, Brady violations, and spoliation of evidence.  Interestingly, in the civil law, the remedies for spoliation seem more defined; on the criminal side, the analysis is one of due process.

I successfully represented clients in having a federal government’s writ of execution dismissed in its attempt to seize property to satisfy a two decades’ old restitution order issued in connection with a twenty year old plea to food stamp fraud.  The subject property actually belonged to my clients’ daughter, and was purchased by her via “proceeds” tenuously and remote in time to the parents’ disclosed donation of property to her years prior.  There is a section at pp. 5-7 on spoliation because the federal government admitted it had destroyed the entirety of the criminal files.  The brief is available at writing sample Lewis response to OSC re asset forfeiture. The court dismissed the government’s writ, without having to reach the spoliation issue.

Alex Kozinski, Chief Judge, United States Ninth Circuit Court of Appeal, wrote a remarkable article on, among other things, prosecutorial misconduct and evidentiary issues, published here at  As a Shreveport attorney these days, I was moved by Kozinski’s discussion of Marty Stroud’s published mea culpa upon the exoneration of Glen Ford after exculpatory evidence came to light, a man he prosecuted onto death row.  (see id. at p.xxxvii).

United States v. Olsen is a must read.  The dissent excoriates what was a sham of a criminal trial, and shames not only prosecutors, but experts, forensic evidence and judges, as well.  Kenneth Olsen was convicted by a federal jury of knowingly developing a biological agent [ricin] for use as a weapon in violation of 18 U.S.C. § 175.   He never poisoned anyone.  Nor did he try to.  Olsen admitted that he produced ricin, a highly toxic poison, but argued that he didn’t intend to use it as a weapon. Instead, he claimed that he was motivated by “an irresponsible sense of curiosity” about “strange and morbid things.”

He was convicted, with the help of an unscrupulous prosecutor, a rogue expert, and an unmindful court.   Kozinski opened the dissent with this:

There is an epidemic of Brady violations abroad in the land. Only judges can put a stop to it.”

He summed up the actual evidence, thusly:

“So what is this “devastating,” “overwhelming” evidence? “Thought” evidence, of course: “‘What is unique about the evidence in this case is we have captured a thought process,’” the prosecutor said in closing. Id. at 1186. By this, the prosecutor meant the ambiguous evidence of a year’s worth of Olsen’s Internet browsing. Id. at 1185. In an investigation that would have made Big Brother green with envy, the government produced 20,000 pages showing the websites Olsen visited and the searches he performed. Id. During that year, Olsen visited sites relating to ricin and other poisons. Id. He printed materials from these pages and ordered works with menacing titles such as: “‘How to Kill,’ ‘Silent Death,’ ‘Getting Even,’ and the ‘Poisoner’s Handbook.’” Id. at 1186. Olsen also searched for “‘silent killers,’ ‘death by poison,’ ‘tasteless poison,’ ‘hidden poison,’ ‘undetectable poisons,’ ‘untraceable poisons’ . . . ‘deadly sleeping pills,’ and ‘common ingredients for death by sleep.’” Id.”

“The panel then tells us of Olsen’s handwritten notes in which he wrote out “the maximum doses, in milligrams,” of four antihistamine and sleeping drugs, including the one that had been spiked with ricin. Id. at 1186–87. “Perhaps most incriminating of all,” the panel says, was the fact that “Olsen mathematically calculated the weight in kilograms of a 150- pound person.” Id. at 1187. We’re told that Olsen’s wife, his mistress and his former boss “all weighed around 150 pounds,” id., as if this is proof that Olsen intended to kill one (or all?) of them.”

Kozinski characterized the evidence succinctly:

“Intriguing, in a Jerry Springer kind of way, but whom was Olsen planning to kill? We don’t know. And what was his motive? The panel doesn’t say. Given that the government so thoroughly “captured [Olsen’s] thought process,” id. at 1186, it’s surprising that these “thoughts” don’t shed light on the intended victim (or victims?). Surely somewhere in the 20,000 pages of Internet proxy logs Olsen searched for “what to wear to your boss’s funeral” or “how to file a widower’s tax return,” or maybe he watched “How to Murder Your Wife” on Netflix. But the opinion makes no mention of it, which makes the materiality analysis that much weaker. This is hardly the “overwhelming” evidence of intent that the panel promises. The evidence is consistent with Olsen’s intent to use the ricin as a weapon, of course, but it’s also consistent with the irresponsible curiosity that Olsen claims motivated him.”

Kozinski criticized not just the instant prosecutor, an assistant US attorney, but all prosecutors, stating

“I wish I could say that the prosecutor’s unprofessionalism here is the exception, that his propensity for shortcuts and indifference to his ethical and legal responsibilities is a rare blemish and source of embarrassment to an otherwise diligent and scrupulous corps of attorneys staffing prosecutors’ offices across the country. But it wouldn’t be true. Brady violations have reached epidemic proportions in recent years, and the federal and state reporters bear testament to this unsettling trend.”

Kozinski didn’t stop there.  He continued:

“When a public official behaves with such casual disregard for his constitutional obligations and the rights of the accused, it erodes the public’s trust in our justice system, and chips away at the foundational premises of the rule of law. When such transgressions are acknowledged yet forgiven by the courts, we endorse and invite their repetition.

Kozinski then excoriated, with his usual penchant for in depth citation, the abuses of government forensic evidence and expert testimony, stating:

“Olsen’s case points to another important problem—that of rogue investigators and forensic experts. Melinkoff’s long history of misconduct, resulting in the wrongful conviction of numerous innocent people, is hardly unique.

Kozinski continued, and again, laid blame on prosecutors:

“Because modern criminal trials frequently turn on forensic reports, these incidents of misconduct raise the frightening prospect that many of the over 1.5 million people now populating state and federal prisons might, in fact, be innocent. See E. Ann Carson & Daniela Golinelli, Prisoners in 2012—Advance Counts, Bureau of Justice Statistics (July 2013). How do rogue forensic scientists and other bad cops thrive in our criminal justice system? The simple answer is that some prosecutors turn a blind eye to such misconduct because they’re more interested in gaining a conviction than achieving a just result.

Kozinski saved his harshest words… for judges and closed with this:

“In turning a blind eye to this grave transgression, the panel has shirked its own duty and compounded the violence done to the Constitution by the Assistant U.S. Attorney.


The Ninth Circuit has a youtube channel.  You can watch oral arguments…online.  A must watch oral argument (in addition to those discussed by Kozinski in his article) is 13-56132 Johnny Baca v. Derral Adams, YOUTUBE (Jan. 8, 2015), watch?v 2sCUrhgXjH4.  The case was before the court on habeas review, of the second state court conviction of Baca of murder for hire.  (Notably, the purported principal, was never investigated, arrested, or tried). The first conviction was reversed because the state prosecutor suborned perjury.  At the second trial, a second state prosecutor….suborned perjury.  Somehow the California appellate courts let it slide the second time.  By the 28 minute mark, Kozinski is tearing into the state attorney general.  The Los Angeles Times published an article on the matter and a link to the argument (as does the above youtube link).

Other sources of possible interest on the issues of spoliation and/or prosecutorial misconduct:

An Epidemic of Prosecutor Misconduct, Center For Prosecutor Integrity (2013)

Prosecutor Knowingly Elicits False Testimony Robbery Conviction Thrown Out (2013).  Dow v. Virga, No. 11-17678 (9th Cir. 2013):

The prosecutor’s procurement of testimony she knew to be false and her failure to correct it constitutes prosecutorial misconduct under Napue v. Illinois. Indeed, rather than tell the Court that the detective’s testimony was false, she used it to argue the defendant’s guilty conscience to the jury.

While this ethical violation does not give rise to an automatic reversal, the 9th Circuit determined that a new trial is required for Dow because the prosecutor’s actions would have influenced the judgment of the jury. This is the “materiality” standard for Napue violations. Judge Reinhardt wrote for the 9th Circuit:

Applying de novo review, we conclude that Dow prevails on his Napue claim because he meets the materiality standard. This standard, which requires us to determine whether “there is any reasonable likelihood that the false testimony could have affected the judgment of the jury,” Agurs, 427 U.S. at 103 (emphasis added), is easily met here.  The evidence against Dow was weak and the prosecutor’s arguments undoubtedly had an effect on the jury’s decision.  Thus, Dow was deprived of his constitutional right to due process of law.


This article (Spoliation of Evidence discusses remedies applied in civil cases for spoliation of evidence:

Over the years, the courts have found numerous sanctions to be appropriate for spoliation of evidence. Courts have allowed adverse inferences to be drawn from the loss or destruction of relevant evidence, dismissed cases or stricken pleadings, issued fines and applied most every other sanction available for the failure to provide discovery. A proper spoliation sanction should serve both fairness and punitive functions. Adkins v. Wolever, 554 F.3d 650 (6th Cir. 2008). Because failures to produce relevant evidence fall “along a continuum of fault – ranging from innocence through the degrees of negligence to intentionality,” Raush v. United States, 844 F.2d 1239, 1246 (6th Cir. 1988), the severity of the sanction must, depending on the circumstances of the case, correspond to the party’s fault.

This law review article, Cynthia E. Jones, The Right Remedy for the Wrongly Convicted: Judicial Sanction for Destruction of DNA Evidence, 77 Fordham L. Rev. 2893 (2009). Available at: r/vol77/iss6/2 focuses on destruction of DNA evidence, and discusses the relevant and apposite case law.

A public defender in Wisconsin, uploaded this Spoliation powerpoint (in pdf format) regarding spoliation of evidence, with possible remedies and a sample motion.

The North Carolina Indigent Defense Services uploaded the article, A Practical Guide to Brady Motions (2008) as apart of its regular training programs.

A 2009 list of successful Brady/Napue cases is available here courtesy of the Capital Defense Network.

A law review article entitled “Bad Faith Exception to Prosecutorial Immunity for Brady Violations,” proposes such an exception and explains why it would not violate Imbler or Kalina v. Fletcher.  Benne L. Gershman, Bad Faith Exception to Prosecutorial Immunity for Brady Violations, Amicus, Aug. 10, 2010,

I was tasked to do the research on this case… to pierce prosecutorial immunity.  The limits of prosecutorial immunity are fairly well outlined in the Ninth Circuit decision in Milstein v. Cooley.

The following is a case that originated in the Middle District of Louisiana and the Fifth Circuit pierced prosecutorial immunity for the conduct of the prosecutor in having a witness arrested without a warrant in retaliation for a refusal to cooperate:

“The issues in this case are whether a state prosecuting attorney is absolutely immune from suit for money damages for (1) ordering a sheriff’s deputy to make a warrantless arrest without probable cause of a witness in retaliation for the witness’s refusal to testify that her boyfriend had struck her in the face during a domestic violence altercation, and (2) subsequently maliciously prosecuting the witness for making a false report of domestic violence. We conclude that the prosecuting attorney is absolutely immune from liability for initiating an alleged malicious prosecution against the witness but not absolutely immune from liability for ordering the officer to make a warrantless arrest.”
Loupe v. O’Bannon, No. 15-30535 (5th Cir. 2016)


I also discussed prosecutorial immunity in another post.

I will, as always, be amending this post, as I find resources.


Kathryn S. Bloomfield