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That Joke Isn’t Funny Any More: People v. Velasco-Palacios on Prosecutorial Misconduct

2015 March 2
by Alex Coolman

What kind of prosecutor fabricates evidence that could cause a defendant to spend the rest of his life in prison and then claims that doing so was just a “joke”?  The kind of prosecutor discussed in People v. Velasco-Palacios (F068833), an unpublished case issued last week by the Fifth District Court of Appeal.   Thankfully, the trial court had the integrity to impose a sanction with some significance when this appalling misconduct came to light: it dismissed the case.

Prosecutorial Misconduct Isn't Funny Anymore

Prosecutorial Misconduct Isn’t Funny Anymore: as The Smiths said, ” I’m afraid
It doesn’t make me smile.”

The Velasco-Palacios opinion is interesting because it repeatedly pushes back against the Sixth District Court of Appeal’s discouraging 2011 opinion in Uribe, which found “grossly shocking and outrageous” prosecutorial misconduct but nevertheless found that misconduct harmlessUribe concluded that a trial court’s dismissal of charges on the basis of prosecutorial misconduct was reviewed de novo on appeal — giving the government much better odds of reversing that decision — whereas Velasco-Palacios says that the more deferential “abuse of discretion” standard should apply, and finds no abuse in the trial court’s resolution of the issue.

Things have changed a bit since 2011, when Uribe was published.  That’s due in significant part to the efforts of Ninth Circuit Chief Justice Kozinski to get California courts to acknowledge the reality of the widespread prosecutorial misconduct in this state.  Those efforts include both his searing dissent in the 2013 case of United States v. Olsen and his recent comments in Baca v. Adams, where he wondered out loud why a prosecutor who lied on the stand had never faced perjury charges.  Nevertheless, the California Attorney General was still vigorously pushing in Velasco-Palacios for the kind of do-over outcome that would have meant no real consequences at all for the prosecution team.  The Fifth District panel nicely explains why that just won’t cut it, and why the “joke” of trying to put people in prison on the basis of made-up evidence isn’t particularly funny:

Had defendant pled guilty before [defense lawyer] Hinman confronted [the prosecutor, Robert] Murray about the falsified evidence, it is unlikely Murray’s flagrant misconduct would have ever come to light.  If the sole penalty for attempting to induce a plea agreement through fraudulent evidence is to simply discard the fraudulent evidence and continue the proceedings, “the state would merely prove its case by the use of other, untainted evidence,” and “[t]he prosecution would proceed as if the unlawful conduct had not occurred.” (Ibid.) Indeed, if the People’s proposed remedy were adopted, the only result of the prosecution’s gross misconduct would have been the loss of defendant’s attorney and the replacement of the prosecutor. Such a result would do little to deter future misconduct and nothing to vindicate defendant’s constitutional rights.

Incidentally, it’s chilling to consider how this whole case would have been resolved, in an appellate context, if the defendant had entered a plea before the falsification had been discovered.  His motion to withdraw the plea could have been denied at the discretion of the judge and reviewed on appeal for an “abuse” of that discretion, a deferential standard that might well have seen the defendant spending the rest of his life in prison on the basis of evidence that was made up out of whole cloth.

Related Posts:

The Context of Judge Kozinski’s Dissent in U.S. v Olsen (2013)

People v. Uribe: Prosecutor’s Conduct Was “Grossly Shocking and Outrageous” — But Not Shocking or Outrageous Enough to Warrant Dismissal of the Charges (2011)

California Supreme Court Depublishes Appellate Decision that Found “Pervasive Pattern” of Prosecutorial Misconduct (2011)

Report: Most Prosecutorial Misconduct Goes Unpunished (2010)


Skepticism About Stingray (IMSI) Data Collection in Santa Clara County

2015 February 24
by Alex Coolman

The Mercury News had a piece yesterday describing concerns about the installation of Stingray cellphone data collection devices in Santa Clara County.  Stingray-type devices, which are generically called “International Mobile Subscriber Identity catcher” or IMSI devices,  intercept broad swaths of cell phone data in a procedure that many critics argue violates the Fourth Amendment.

Law enforcement agencies around the country have begun using these devices, and are commonly refusing to release information about them to reporters and other members of the public, in spite of the fact that their legality would seem to be hazy at best.  Here in San Diego, the almost total lack of governmental transparency around the use of these devices is the subject of a lawsuit brought by the First Amendment Coalition.

A Santa Clara County sheriffs’ official is paraphrased in the article linked above as saying that the device “will be used purely to locate the subject of an investigation since it can find a phone through walls, even if the owner isn’t making a call.”  I’m not sure if that is supposed to be reassuring, but it doesn’t sound that way to me, nor do I get how it can be squared with the United States Supreme Court’s 2001 decision in Kyllo v. United States, which concluded that the use of thermal imaging to scrutinize the interior of a home constitutes a search for Fourth Amendment purposes.


Dispatches from the Department of Troubling Current Events

2015 February 23

Rockwell: Somebody’s Watching Me. ’80s pop song about paranoia becomes anthem for normal 21st century American life.

I got back from a trip and started working through a pile of recent Daily Journals to find one article stating that President Obama has signed an executive order promoting “greater information sharing between government and the private sector” (see the White House’s remarks here) and another stating that portions of a suit regarding NSA surveillance of American citizens had been tossed by a federal judge (coverage from a non-subscription source here. The case is called Jewel v. NSA, and the judge’s order, stating that “a potential Fourth Amendment Claim would have to be dismissed on the basis that any possible defenses would require impermissible disclosure of state secret information,” can be found on the EFF website).

To summarize, then: more collaboration, rather than less, between American tech companies and the American government (in spite of the already tarnished reputation of companies like Verizon, which the German government won’t work with anymore post-Snowden) and less information, rather than more, available to the public about what exactly is going on.

Time to dust off my “Orwellian nightmares that somehow became the status quo” blog tag.  So it goes.

Related Posts: Gmail for Laywers? No. The Skillern Case and the End of Naive Cloud.

California Appellate Courts Increasingly Stressing Compliance with Appellate Briefing Rules

2015 February 16
by Alex Coolman

Over at the California Attorney Fees Blog, the authors noted last week that “appellate courts are increasingly deeming arguments forfeited or otherwise rejecting them for failure to comply with appellate procedures contained in the California Rules of Court relating to brief argumentation and record citation.

I think that’s an accurate observation. The specific issue discussed in the post at the Attorney Fees blog was the failure to provide pinpoint cites, which is indeed incredibly aggravating for anybody who is trying to make sense of a brief. But we’re also seeing a lot more comments from the appellate courts about the need for clear argument headings, and this happening in civil appeals as well as criminal appeals.


Habeas Inspiration via Walt Longmire

2015 February 10
by Alex Coolman

I’ve been reading Craig Johnson’s novel The Cold Dish for the last few days.  The sheriff who is at the center of the story, Walt Longmire, says the following at one point:

The old police adage says, when you’re done and there’s nothing there, go back to the beginning and start over.  So here I was, staring at the beginning and trying to figure out what it was I’d missed the first time.

Also helpful words to remember when wandering through the trackless forest that sometimes is habeas work!

Case Studies in Worrisome Timing: Newport Beach School Official Fired While Seeking to Compel Release of Public Records

2015 February 8
by Alex Coolman

My old fish-wrap journalism home, the Daily Pilot, had an article last week about a Newport-Mesa Unified School District human resources director who was fired in the midst of seeking a writ of mandate to compel the district to release public records.  As the article notes: “it remains unclear whether [John] Caldecott’s request, or action in court, caused the school board to remove him from his post.”

Well, sure.  It is unclear. And admittedly there does appear to be a pre-existing beef — the whole point of the records request was to compel the district to release a response to a complaint that Caldecott had filed against district Superintendent Fred Navarro.  Still, we infer intent from circumstances, and the timing of things here looks really bad.  Caldecott says that he was fired “four hours after the Writ of Mandate was filed by my attorney with the Court.”

At least some other folks have now filed Public Records Act requests seeking the same info that Caldecott was trying to obtain.

At any rate, it will be interesting to see whether the PRA request goes anywhere or whether the district’s lawyers can convince the court that an exception justifies non-disclosure. My sense is that, whatever the outcome, the district’s strategy is only exacerbating the problem by turning a personnel dispute into a showdown over bureaucratic transparency.


Hyperlinks in Appellate Briefs — Where to Link?

2015 February 7
by Alex Coolman

I got charged up last week by an issue of the Journal of Appellate Practice and Process that deals with the pros and cons of using digital documents in the appellate context. As a result, I took the plunge into including hyperlinks to caselaw in some material filed in a California appellate court, but immediately ran into a dilemma.

Whaddaya link to? If I’m providing a link to a case, should I be using Lexis links?  Westlaw?  Neither?

The last thing I want to do is put a hyperlink in my briefing that goes nowhere when a research attorney clicks on it.  But if the link points to a proprietary research service, such as Westlaw, it seems likely to encounter that problem, at least some of the time.  My solution was to link to document sources that can be accessed by anyone with Internet access, such as Google Scholar and the court’s own repository of slip opinions.  Another approach, which has a certain appeal, would be to include a digital appendix of all relevant material and then have the hyperlinks point to that appendix rather than pointing to the Internet.  Then the research attorneys can check my cites while sitting at the beach reading an iPad, or flying on a plane.  But it would be best of all if the link simply opened up the relevant case in whatever proprietary service the reader happens to be using.

The California rules of court, in my opinion, don’t dictate any particular approach to external hyperlinks.  The rules state that a “brief” that is electronically filed must be “a single computer file in text-searchable Portable Document Format (PDF), and it must exactly duplicate the appearance of the paper copy, including the order and pagination of all of the brief’s components.”  (Rule 8.212(c)(2), emphasis added.)  But it’s inherent in the nature of a pdf document that it can simultaneously be a “single computer file” that has the same “appearance” as a paper printout and it can include links to external sources.   Nothing in the rules of court explicitly addresses how or whether such links should be included.  The same rule also states that the submitter must ensure “that the copy does not contain computer code, including viruses, that might be harmful to the court’s system for receipt of electronic copies or to other users of that system,” but the point of this sentence seems to be to prevent malicious code, not to prevent hyperlinks.

Some courts  encourage an “anything goes” approach to hyperlinks.  Below is a diagram (click to enlarge) included in a 2014 writeup on the subject of links provided by some federal district courts, including the Central District of California.

link styles

But, for the reasons, explained above, I’m not sure this is such a great strategy. The idea that appellate writing should not get in the reader’s way is so commonly repeated as to be a cliche, but it’s true just the same, and I would say that the same principle should apply to the way electronic links operate.

Would be interested if any folks have come up with good solutions to this issue. It seems like an awfully simple problem, but I’m not sure the solution is all that simple.

Sunshine Week 2015 Coming in March – Celebrating Open Government and Access to Public Records

2015 February 6
by Alex Coolman

Sunshine Week, which promotes more open government and better access to public records, takes place March 15 through 21, 2015, and this is the 10th year it has been held.  Although a lot of my practice is in the appellate arena where the “record” is supposed to be fixed, I seem to be spending more time every year chasing after seemingly obvious pieces of evidence that somehow disappeared in the course of trial-level work.  The work of reporters, lawyers, and everyday citizen gadflies is essential in pushing our government to live up to the high ideal of a relatively transparent democracy.  In the absence of that work, state secrecy and bureaucratic opacity will continue to creep along, like untended ivy.

sunshine week

Frazier v. Jenkins: Sixth Circuit on Procedural Default, Actual Innocence, and AEDPA Deference

2014 November 3
by Alex Coolman

A death penalty case published by the Sixth Circuit last week involves a real-world example of an idea that I initially thought was too out-there when it was mentioned in a journal article by University of Michigan Law School Professor Kimberly A. Thomas: the idea that procedural default in state court could be a way to avoid AEDPA deference when a habeas petitioner goes to federal court.

The claim in Frazier v. Jenkins (11-4262, Oct. 27, 2014) is straightforward: the petitioner argues that he is mentally retarded, and thus can not be executed under Atkins v. Virginia, 536 U.S. 304 (2002).  But this claim was withdrawn in the state court and so was procedurally defaulted.  Normally a petitioner would need to jump through a number of additional hoops to get such a claim evaluated on the merits by the federal court in the context of a habeas argument.

The majority in Frazier, however, says that the Atkins claim gets around the procedural default problem because it is essentially a claim that the petitioner is “innocent” of the death penalty (or, to put it another way, he can not legally be executed).  That approach to the question of procedural default in a capital case is solidly supported by Sawyer v. Whitley, 505 U.S. 333, 336 (1992).

But what about the merits of the issue?  Should the federal court defer to the state analysis, which was procedural rather than substantive?  The majority says that deference does not apply, and proceeds to perform a substantive analysis of the Atkins question (which the petitioner loses).  In other words, this is a scenario that professor Thomas suggested: one in which, counterintuitively, it is better for the petitioner to have defaulted.  The dissent says: hey, what about AEDPA?  What about Harrington v. Richter?  That language is interesting:

As I understand the majority’s contrary position, it is premised on the intuition that a federal habeas claim cannot be two things at the same time: procedurally defaulted under state law and adjudicated on the merits under federal law. But intuition and federal habeas law do not always go together, and this is one of those occasions. In the course of enforcing a state-law procedural-default rule, a state court may well address the merits of the federal claim, as this case illustrates.

Williams v. Swarthout: Ninth Circuit on Whether the State Court Rejected a Federal Claim

2014 November 3
tags: ,
by Alex Coolman

When a state court acknowledges a defendant’s argument that an error “undercut his rights to a fair and impartial jury” and then agrees that error occurred, is that opinion an acknowledgment of federal Constitutional error, for purposes of subsequent federal habeas review?  You might think so, but the split opinion from a Ninth Circuit panel in Williams v. Swarthout (Oct. 23, 2014, 11-57255) illustrates that there can be room for disagreement.  The majority views this as a case where the state issue and the federal issue (which had to do with a court mistakenly stating that the defendant pled guilty) were essentially the same, and notes that the Attorney General conceded, at oral argument, that the state court “considered and ruled on the federal constitutional question.” Therefore, according to the majority, the state court’s finding of error was a finding of federal constitutional error.

The dissent, however, emphasizes that the state court’s prejudice analysis was framed entirely in terms of state law, and argues that “it is clear from the court of appeal’s decision that it did not find constitutional error.”

Not surprisingly, I tend to agree with the majority.  It would be odd if a state court acknowledged a federal claim and then, without ever saying as much, denied that claim and resolved the issue by finding error solely on state law grounds.  It also strikes me as a rather strained interpretation of the idea of federal “deference” under the AEDPA to suggest that the federal court must “defer” to the “denial” of a federal claim that never explicitly occurred, because such purported deference might actually amount to re-writing what the state court concluded.

In Johnson v. Williams, 133 S.Ct. 1088, 1096 (2013), the Supreme Court said that “When a state court rejects a federal claim without expressly addressing that claim, a federal habeas court must presume that the federal claim was adjudicated on the merits.”   That way of framing the scenario arises from the more common situation where a state court finds no error in the first place, but it does seem to leave a zone of ambiguity around the type of situation that occurred in Williams v. Swarthout.

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