Articles Posted in Constitutional Rights

When a person is charged with a crime, the prosecution is bound by law to provide all the evidence supporting the charge or charges, including evidence that might exonerate the defendant. Evidence that is favorable to the defendant is called “exculpatory evidence” and back in 1963, the United States Supreme Court held that the prosecution must give all this exculpatory evidence to the defense. This case, Brady v. Maryland, 373 U.S. 83, was the seminal case on exculpatory evidence. These days, attorneys refer to Brady evidence when they are talking about exculpatory evidence.

Unfortunately, the prosecution sometimes plays fast and loose with exculpatory evidence. And if the defense doesn’t know the evidence exists, it may be hidden by the prosecution and not available in the discovery, leaving the defendant at a disadvantage. This doesn’t happen in every case, most prosecutors run an honest practice, but it happens. A few years ago, the Orange County District Attorney’s office was scandalized by allegations that it withheld material evidence from the defense and the court in a high-profile murder case. That led to a new law in California that provides for criminal punishment of a prosecutor who withholds evidence.

Sometimes, the discovery that a prosecutor has withheld exculpatory evidence does not become known until years after the trial. For example, just this year, disciplinary charges were filed by the State Bar of California against a former L.A. City Attorney who was accused of withholding potential exculpatory evidence in a murder case that took place 30 years ago. The case was a death penalty case and the defendant was convicted and sentenced to death.

We cannot walk down our streets, drive our cars, or talk on our cell phones without these activities being caught by ubiquitous law enforcement surveillance. Use a cell phone and your location can be easily discovered. Similarly, the license plates of cars everywhere are being continuously scanned and registered in a database. Facial recognition cameras are scanning pedestrians and drivers at every turn. Next time you are walking in town, look up on the light poles and other high public structures. Smile, you’re on candid camera.

This surveillance undoubtedly helps the cops catch the bad guys. I have seen how these techniques have enabled the police to discover the perpetrator of crime and locate him or her quickly. The techniques also often provide the prosecution with solid evidence. The defendant who says, “I wasn’t there” as defendants do, will often find out that the prosecution has irrefutable evidence that the defendant was there. Maybe the defendant’s cell phone signal was running off a cell tower near the location of the crime, maybe the defendant’s license plate was scanned on the street where the crime occurred, maybe the prosecution even has a picture of the defendant from a nearby surveillance camera, and soon, a law enforcement drone or small plane may capture evidence against the defendant. Defendants are often unaware that they have been surreptitiously surveilled – as indeed we all are!

This comes with a price. Every innocent citizen is caught in this web of surveillance implicating our Fourth Amendment Right to be free from unreasonable search and seizure. Many people are willing to be constantly surveilled in trade off for greater crime prevention. But, the wisdom of our Founding Fathers should not be ignored.

Sometimes a person arrested for a crime will swear he or she was nowhere near the location when the criminal incident took place., but the prosecution will allege otherwise…with evidence to prove it. That evidence: tracking of the defendant’s cell phone. Even if the defendant wasn’t using his or her cellphone at the time, the cellphone sends data to cell towers, or more commonly these days, the GPS system embedded on most cellphones does the work. All the police need is the defendant’s cellphone (assuming he or she was carrying it at the time of the alleged crime) to find the defendant’s location at the time. But what if the cellphone, say, disappeared? The authorities can still get the information from the cellphone service provider.

In California, the state authorities need a warrant (or the cellphone owner’s consent) to search any cell phone data, but that isn’t true in all states and it isn’t the case for federal crimes. So even if an individual is suspected of a crime in California, but it is a federal crime being investigated by federal authorities, those authorities do not need a warrant to search historical data held by the suspect’s cellphone service provider.

The Fourth Amendment to the United States Constitution guarantees that every person in this country is secure from unreasonable searches and seizures. How “unreasonable” is defined is the subject of many a treatise but for purposes here and ignoring the enumerated exceptions for the moment, if there is no warrant, the search and seizure is considered by law to be “unreasonable.” How would the warrantless search of historical cellphone data as recorded by the cellphone service provider fit into the cellphone owner’s Fourth Amendment guarantee?

Police use-of-force has been big news in this country for several years now. A large segment of the public believes that the police have used fatal force without just cause. They cite many high-profile cases: Michael Brown, Eric Garner, Freddie Gray, and so on. These police killings have triggered a storm of protests across the country, including in California. In some of these cases, the officer or officers involved faced possible charges of manslaughter or even murder. In virtually all of these cases, the decision as to whether to prosecute these officers is left to a secret grand jury proceedings. With few exceptions, the grand juries have found that an indictment of the officer is not supported by the evidence. The public often perceives the grand jury as biased in favor of the cops and there has been a high level of distrust in the grand jury system. It doesn’t help that the proceedings are held in secret.

California became the first state in the country to address the public’s distrust of the grand jury system as employed in officer-involved lethal force cases. In 2015, Governor Brown signed into law a bill, SB 227, prohibiting the use of grand juries in California when an officer has used lethal force under circumstances that are possibly criminal. Rather, if a cop was to be charged, the district attorney would have to directly file the criminal complaint and the case would proceed through an open preliminary hearing. Thereafter, charges by what is called an information would be filed by the district attorney if the evidence at the preliminary hearing showed a reasonable possibility that the officer’s use of lethal force was a criminal act. Prior to enactment of SB 227, California prosecutors had the option of going to the grand jury or directly filing charges by a criminal complaint.

Not surprisingly prosecutors opposed SB 277. They argued that the grand jury system, by the fact that it is held in secret, facilitates the discovery of the truth. The grand jury proceedings, they argued, permits them to compel witnesses to testify and “offer a fuller seeking of the truth for all sides. . ..” (SB 227 Arguments in Opposition.) Prosecutors also objected because they argued that if they could not use the grand jury as an investigation tool in police lethal force cases, it hampered their ability to properly investigate the incident.

In 2015, Orange County Superior Court Judge Thomas Goethals removed the Orange County District Attorney’s Office from the trial of Scott Dekraai, who was accused and since convicted of the worst mass murder in Orange County. Judge Goethals booted the District Attorney’s Office from the case after an investigation initiated by the defendant’s lawyer revealed that law enforcement investigating the case withheld material evidence from the court. Law enforcement officers are agents for the District Attorney and as such, the judge found that the District Attorney’s Office was responsible for the illegal withholding of evidence in the trial. Although Judge Goethals found that the district attorneys on the case had committed serious misconduct, but concluded that their actions were not intentional.

Some legal observers would beg to differ with the judge’s ruling. Many defense attorneys have long suspected, or even known, that the District Attorney’s Office regularly withholds exculpatory evidence at trial. Sometimes a trial seems more like a competition, with the District Attorney out to win at all costs, than the right guaranteed by our Constitution for a fair and impartial presentation of facts to be heard and decided by a trial of peers. This is not only a violation of the defendant’s due process rights but it perverts the criminal justice system. The withholding or distortion of evidence denies a defendant a fair trial and, worse—it can (and has) result in the conviction of an innocent person.

Jumpstarted by the events in Judge Goethals courtroom, Assembly Bill 1909, was signed into law by Governor Brown last month. This law, which will be added by a subdivision to Penal Code section 141, punishes prosecutors who are found to abuse their power by “intentionally and in bad faith” tampering or withholding evidence in a criminal trial. The new law requires that the prosecutor knew the evidence was “relevant and material to the outcome of the case” and acted with “specific intent.” In the Orange County case, Judge Goethals found that the district attorneys did not act intentionally. So even though this new law was prompted by the actions in that trial, the district attorneys involved would not be prosecuted under this new law.

THE FIRST RULE TO FOLLOW AFTER AN ARREST: REMAIN SILENT EXCEPT TO REQUEST AN ATTORNEY

There is a scene in the Showtime series “Billions” where one of the characters is arrested by the F.B.I. for financial fraud. As he is read his Miranda rights and led away in handcuffs, he repeats only one word: “Lawyer, Lawyer, Lawyer,” Now I don’t say this just because I am a criminal defense attorney, but this scene got it right. When you are arrested, the cops must immediately “read you your rights,” which is to say, you must be informed that you have the right to remain silent, that anything you say may be used against you in a court of law, and that you have the right to an attorney. Let me emphasize something: anything you say will in all probability be used against you in a court of law even if the police later suggest during an interrogation that it won’t. All too often after an arrest the cops will use well-honed tactics to get an arrestee to talk. Your best advice is to follow the character’s action in Billions, request an attorney and say nothing else.

Under the law, once an arrestee invokes the right to remain silent and requests an attorney, the police are supposed to cease their questioning. Any response or statement made by the arrestee to further police questioning is evidence that is violation of the law and can be suppressed (i.e., not admitted in evidence). But in reality, what often happens is the police will manage to strike up a conversation with the arrestee and the arrestee will take the bait and engage in conversation with the police. Even if an arrestee says something like “I ain’t talkin’” and indeed remains silent, but then later responds—even in a limited way— to police questioning, it may be considered a waiver of the right to remain silent. In short, an arrestee must affirmatively and clearly state that he or she wishes to remain silent and moreover, do just that: Remain silent (with the exception of requesting an attorney).