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.”

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










Is Louisiana Broken?

Is Louisiana Broken?


This is a blog post that will require much amendment and addition. Sadly.  The headlines of just this last year…. Tell a sad tale. From an official thrown in jail for scoffing public record requests and court orders … to SCOTUS by per curiam opinion overturning yet another Louisiana criminal conviction “because the Louisiana courts have proven to be repeat offenders; they repeatedly fail to appropriately enforce prosecutors’ Brady obligations” ….. to Grand Isle…where it seems half the town’s government is under indictment.

Just today, June 30, 2016, a news report: The Louisiana Supreme Court suspended two 18th Judicial District Court judges due to misconduct.  Judge Free.  And Judge Best.  One for relieving a convicted sex offender of some probation time due to a personal relationship. The other for engaging in ex parte communications with alleged victims.

Sheriff Ackal of Iberia Parish, has been indicted for violation of federal civil rights laws.  “The case against Ackal stems from the alleged beatings of inmates who were detained while awaiting trials. Ackal allegedly ordered other officers to carry out attacks in the jail’s chapel because there are no security cameras in there. He is charged with two counts of conspiracy against rights and two counts of deprivation of rights under the color of law, and faces up to 10 years in prison for each count. Nine deputies have already pleaded guilty to related charges.”  see following link.  After meeting with the prosecutor, hE not only was recorded making anti-Semitic comments about the federal prosecutor, he apparently threatened to shoot him between his eyes.

[UPDATE  November, 2016. Sheriff Ackal was found not guilty on all four counts by a federal jury trial.  The investigation did reveal a lot of what Ackal describes as “rogue” cops who beat inmates and planted narcotics on suspects]

November, 2016, edit to add  Louisiana Supreme Court overturned a death sentence in the Crawford case, not because of a paucity of evidence (and there was), not because of suspect pathology reports/testimony, not because Cox argued to the jury that Jesus commanded the death sentence, not because Cox wrote a memo to the department of probation and parole, demanding Crawford suffer as much as humanly possible, but it was overturned because Blacks were systematically excluded from the jury.  The trial took place in the district with the most death sentences per capita than any other county/parish in the nation, some 77% of them Black defendants, tried by a prosecutor who obtained 1/3 of the death sentences between 2011 and 2015, and who, after much national publicity, did not run for district attorney last term.  Notably, a lost cause monument all but blocks the entrance to that courthouse

A civil lawsuit (though oddly and inexplicably, no criminal action by local law enforcement) is still is making its way, at the speed of a snail stuck in quicksand, against caddo parish commission and commissioners, for flaunting the Louisiana constitution and its own home rule charter, voting for themselves against the dictates of law a generous retirement fund, with up to sixteen percent taxpayer matching funds, raises, and a $15,000 annual travel fund.  Interestingly, an elected official from another parish got a taste of the law for doing the same type of thing… (See link above)…yet in caddo?  Seems different rules prevail.  The commission didn’t stop dipping into public fisc for retirement until after the second letter scolding them from the Louisiana legislative auditor office

Nevermind the shameful manner the Louisiana legislature ignores the funding crisis of the indigent defender offices. I’ve watched  in court   As judges advise indigent defendants of their right to a lawyer, free of charge, if they cannot afford one and turn around in the next breath and order the poor to pay the indigent defender office as much as $1,000.

And, once again, another death penalty conviction is up at the Supreme Court out of Louisiana because yet again, prosecutors withheld material evidence from the defense.  Of course they did.  Per the linked article:

“IN A LOUISIANA case now pending before the U.S. Supreme Court, lawyers for a death row inmate named David Brown are asking the justices to put a stop to what the outspoken jurist and author Alex Kozinski has called an “epidemic” of prosecutorial misconduct. One of the most common forms of such misconduct is the withholding of evidence that might exonerate or mitigate the guilt of a defendant. Failure to turn it over, according to the court’s seminal 1963 decision Brady v. Maryland, is a violation of due process. Brown’s lawyers argue that nothing less is at stake in their client’s case than the future of Brady and the right to due process in criminal proceedings.

Although prosecutors have bristled at Kozinski’s charge, there is certainly plenty of evidence to back up his claim. According to the National Registry of Exonerations, a project at the University of Michigan Law School, 933 of the nearly 1,800 exonerations to date involve official misconduct by prosecutors, police, or other government officials. Thirty-five of those exonerations come from the state of Louisiana alone, where prosecutors have a dismal record of complying with their legal obligations. According to Pace University School of Law professor Bennett Gershman, a leading expert on prosecutorial misconduct, many of Louisiana’s prosecutors “have an incomplete and even warped understanding of the Brady rule, and their enforcement of their Brady duty is deficient.” In Kozinski’s estimation, it is the duty of the courts to solve the misconduct problem. “Only judges can put a stop to it.”

For more on the brilliant jurist, Alex Kozinski, read this article by Slate and more at this LA Times article, which also links to the youtube video of oral argument.  (Yeah, the Ninth Circuit now uploads oral arguments to a youtube channel!).

[update   SCOTUS declined to hear Brown’s case and the Louisiana court ruling which overturned a lower court’s reversal of the death penalty, now stands]

Not Louisiana courts: they never get it right under Brady. They give prosecutors  judicial license to do as they wish, without regard for the law. The courts here made up their own rule: defense must show the verdict would have been different had the prosecution not violated due process   (Worse, some Louisiana judges treat a Brady violation as a mere civil discovery transgression and apply a harmless error standard).

Brady v. Maryland has been around. A long time. No sitting judge can not know it.  Here is the holding:

“‘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,’ Justice William Douglas wrote for the majority.”

The test is this:  “Evidence is material under Brady if it creates “a ‘reasonable probability’ of a different result.” Kyles v. Whitley, 514 U.S. 419, 434 (1995). “A reasonable probability does not mean that the defendant ‘would more likely than not have received a different verdict with the evidence,’ only that the likelihood of a different result is great enough to ‘undermine[] confidence in the outcome of the trial.” Smith v. Cain, 132 S. Ct. 627, 630 (2012) (quoting Kyles, 514 U.S. at 434). To say that the undisclosed information wasn’t material, a court must conclude that the other evidence was so overwhelming that, even if the withheld evidence had been presented to the jury, there would be no “reasonable probability” that it would have acquitted. This standard isn’t satisfied if “the State’s argument offers a reason that the jury could have disbelieved [the undisclosed evidence], but gives us no confidence that it would have done so.” Id.”

U.S. v. Olsen, No. 10-36063 (9th Cir. 2013)(Kozinski, J., dissenting). Sadly, too many judges get the test  dead wrong.

What happened to the judicial system here?  At one time, Louisiana had brilliant jurists.  True jurists.  Now?  It seems the bench is filled with Just for oil and gas industries and mischievous prosecutors.

Louisiana:  Broke and squandering public fisc and taking from the poor, Constitution be damned, for public misdeeds….  And worse, monetizing justice for self interest   The nation’s incarceration capital, Louisiana, profitized every aspect of criminal justice  it’s just another derivative market to line pockets

Until we take the profit out of so called criminal justice, nothing will change. (P.s.  Someone needs to ensure the DDA gets this DOJ memo)
The DOJ gets it.  Finally  after Ferguson  … But how can the DOJ possibly monitor every aspect of Louisiana’s “justice” system?  It has a nation to run.

Meanwhile, our legislative auditor looked into excessive fine enforcement across Louisiana towns back in 2007…. and did nothing.  read the report and know that the legislature…did NOTHING. It allows these backwoods Boss Hogg backwood justice courts (only Louisiana and Ohio have “mayor’s courts”) AKA mayor’s courts to run roughshod over folks.  I haven’t read it yet, but a Louisiana lawyer wrote a book detailing the constitutional failure of these mayor’s courts,

available for about $4.00 here.  Screen Shot 2016-07-07 at 2.28.19 PMThis is the book’s synopsis:

The Mayor’s Court is Louisiana’s most numerous type of court, with about 250 of these courts across the state, yet very little appears to be known about them. Out of the fifty states, only Louisiana and Ohio still use these courts. Under this system of informal tribunals, a town mayor essentially acts as prosecutor, judge, and jury to enforce municipal ordinances. There is no requirement that a mayor presiding over one of these courts should possess a law degree or have any legal training. Likewise, the inherent duty of mayors to raise revenue creates a potential bias that could cause mayors to convict defendants solely for financial gain. Although their existence is vested under the Louisiana Constitution, there is very limited statutory guidance or procedural safeguards to govern these courts. Many of the few attempts that have been made to interpret laws governing these courts have been misguided and have lead to incorrect court decisions. As a result, the possibility exists for defendants before these courts to be unfairly convicted. This book provides an overview of the mayor’s courts in Louisiana and examines a few due process concerns that arise from these courts’ existence.

A woman spent SIX YEARS fighting an unconstitutional stop in one little Louisiana town that rakes in $$$ with unconstitutional practices.

Contradictorily to its  “Excessive Fines” report on mayors courts, linked above, the Louisiana legislative auditor encouraged district courts to be more aggressive in collecting fines and court costs, which the auditor estimated to exceed $100 Milliom a year.  Gretna got the message.  It is now the arrest capital of the nation.

Louisiana. I. Am. Looking at you. The incarceration capital of the world.

Louisiana — Highest sales taxes in the nation.

Shreveport — 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.

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 go 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.”

And how can DOJ effect change, when the supreme court itself  Facilitates police abuse?

Just recently, Justice Thomas … Gutted the Fourth Amendment, applying a whole new test…that contravenes fifty years of precedence since Terry v Ohio, in the startling ruling of Utah v Strieff.

And while the courts and prosecutors sit on their hands, another man is shot dead in Louisiana.

It’s time.  Time to completely decriminalize minor traffic and other infractions. Expired plates. Expired Motor vehicle inspection stickers. Walking in the street, even when there’s no functional properly maintained sidewalk.  Loud music.  Simple trespass.  Loitering. etc.

They’re all just excuses to profit off of others minor mistakes. To hassle people and to kill black people. Just take a picture or write a report, and send a ticket in the mail.

As discussed in another blog post, Louisiana can’t or just won’t regulate oil and gas. But it can manage to criminalize the most innocuous minor of behaviors.

Not for enjoyment,

Kathryn S. Bloomfield

p.s.  Regarding the featured image:  I found it via  After a Google search for copyright free images of lady liberty crying.  I cannot confirm it is copyright free. I provide the source I used, but do not know if that is the owner. If it is not copyright free, I will immediately take it down.