Monday, December 10, 2012

Defense Attorneys - 3 Strikes Reform - What To Do Now That Prop 36 Has Been Passed

Here, statute decoder Garrick Byers, talks about the effect of newly approved Prop 36 and its impact on California's Three Strikes law.

http://www.claraweb.us/wp-content/uploads/2012/11/3Strikes-What-to-do-Now-2012-Nov-7-Byers1.pdf


Prosecutor Suspended for Withholding Evidence In Gang Murder Case

A veteran prosecutor who improperly withheld crucial evidence in a San Jose gang murder case until the brink of trial has been suspended for a month without pay for incompetence and misconduct.

The suspension of Daniel Carr is the maximum penalty District Attorney Jeff Rosen could impose short of demoting or firing the prosecutor, and it cost Carr four weeks' pay -- $16,500. It is the latest example of Rosen's effort to fulfill his campaign promise to share evidence early and fully with defense attorneys to avoid problems that have allowed some prosecutors to ignore judges' orders and conceal evidence.

The problem surfaced early in 2011, shortly after Rosen took office. Twenty-eight days before a group of eight suspected gang members were to stand trial, Carr began revealing a treasure trove of information to their attorneys, including a statement by a co-defendant taken three years earlier and the fact that the alleged murder weapon, a knife, had been discovered in 2008.

Under California law, prosecutors must turn over evidence at least 30 days before trial, though Rosen and many other DAs and judges in California expect it to be turned over far sooner, partly for efficiency's sake. After the belated disclosure of the evidence in this case -- and a last-minute plea agreement by one of the defendants -- the trial was delayed and is now set to start early next year.

Carr's conduct stands out for several other reasons, according to the disciplinary notice, including the sheer volume of withheld evidence, the judge's finding of a violation, the need to reassign the case and the inability of the new prosecutor to know what evidence had been provided to the defense. It took two paralegals three months to figure it out.

But the argument that has gained the most sympathy among Carr's fellow prosecutors is his claim that gang-unit prosecutors commonly withheld valuable evidence from defense attorneys until the last minute to protect witnesses and their families from the very real risk of being knifed or shot by gangsters in retaliation.

However, in February 2009, Carr told Judge Gilbert Brown -- after defense attorneys expressed concern he was withholding evidence -- that he was "not holding anything back.'' Under the law, prosecutors are supposed to seek a judge's permission to withhold evidence, especially in big cases where late disclosure can cause significant delays. Carr argues in his appeal that his supervisors sanctioned the practice of not going to a judge.

After the scandal erupted, Rosen issued a memo instructing other gang-unit prosecutors to immediately turn over any information they were holding unless they got a judge's permission to hold onto it. At least one other prosecutor complied, Carr notes, contending that proves he, Carr, did nothing out of the ordinary. But none of the other gang prosecutors had apparently gone as far as Carr had by amassing a mountain of discovery and exceeding the final 30-day deadline. Carr was motivated by his belief that the defendants were guilty, and was trying to make sure justice was served, according to the notice.