| January 23, 2019
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|The first Brush with reality went south for investors, and those who invested are holding the bag. This theme has been around for over 150 years, the vehicle of proposing riches when the investors believe in snake oil.
Two nights ago at Sudwerk Brewery in Davis, I stumbled upon a banquet hosted by Ross Guenther of the "Idaho-Maryland Mining Corp" and listened into the hype of how the re-opening of the Idaho-Maryland Mine would bring riches to Nevada County and all interested investers; the ultimate power-point shot wasn't about gold, nor about his hyped by-product ceramic tile derivative which had nothing to do with gold production, but an expensively drawn rendition by a prominent architech of the "modern new community" who will support "this new industry", all these fancy housing buildings dominating the juction of the flat. Prior to the presentation, many geologically-related industry representatives (I'll spare their names) were walking around with name tags boasting of their offerings, etc.
Proposal: by next May, full production. Over 200 miners and their families living in the new facility, happy, happy, happy...
Exceptional review of water issues (?)....on and on and on.
No mention of gold recovery after the initial pitch. How does a company propose to re-open a rich, historic gold mine in Nevada County with ceramic tile from byproduct as the principle commodity, no mention of gold production except to suggest "it'll be great" expect to succeed?
Simple. Google what happened with Brush Creek. The link for Ross Geunther and the Idaho-Maryland Mining Corp. is:
And he also lists a phone number which is:
For the life of me, why would someone deliver a pitch to re-open a gold mine with ceramic tile as the mined element when the real deal is gold.
The real deal, the Original Sixteen to One Mine, is right up the hill, producing the world's most prominent gold-in-quartz, with a hand-full of miners and less than a hand-full of investors.
I urge all of the participants at Ross Guenther's presentation of Idaho-Maryland.com to Google OAu, Original Sixteen to One Mine, gold-quartz, and any other related entity.
The English Dam was on the Middle Fork of Yuba River, ot Oregon Creek. Thanks for your thoughts and writing. You and I are headed for the Misc topic I bet. Scoop asked Mike to be alert for a phone call from you. Perhaps he can help your project. History is important to all of us.
|This is a wonderful little spot on the web, a great forum full of interesting sounding characters and rich stories/history of current California Gold Miners.
I've been looking to include elements of our area's history, especially concerning gold mining and the early immigrants that worked the area. There is a spot just above Oregon Creek Campground called Emory Island; the story goes that when the English Dam broke in 1883, a whole flourishing Chinese community was wiped off the face of the earth in seconds. Well I grew up on the north ridge just above that spot. I’ve come back from working in Los Angeles to make my own independent film about a current issue regarding dams in our area; the construction of a major dam at Freeman’s Crossing (half mine below Oregon Creek Campground).
The film is set in current day California and is called “The Ridge Boys” and is about a group of young locals who fight to save their river valley from being destroyed by the construction of a major dam.
SCOOP, I’ve read several of your posts and feel like maybe you’re someone I should get in contact with. You seem to have a wealth of experience and knowledge of the area and your posts of very enjoyable to read. Perhaps you could toss me an e-mail or I could give you a call.
Though it’s not entirely finished, our website is www.theridgeboysmovie.com and you can contact me at firstname.lastname@example.org
I look forward to hearing from you soon,
|About a year ago "oak" left a message about information on old stock certificates from the Harison Gulch Mining Co.
Would like to trade info if you are interested.
|Good Luck to the seller and Best Wishes for the buyer. All gold mine owners believe their gold mine is worth more money than a non-biased, objective professional report would recommend. It is the culture of hard rock gold mining to sell potential or what is hidden underground. All gold mines with a proven passed production have a potential. But, and it is a big but, a business plan with experience, cost analysis, time lines and revenue speculations are the major factors to support or reject a transaction of ownership. High-grade gold mining is unique in an already small and not well-known field of industry. The personal or corporate situations of the owner, seller or buyer are also key, subtle factors.
Other than the prolific Canadian corporate gold mining companies (and I use the description “gold mining” with care as most always stock plays in the gold mining industry) Original Sixteen to One would welcome another serious mining company in the area. The last company to work in our district was the typical small Canadian corporation called Brush Creek Mining. It was a fraud from the beginning. Its management and outside consultants and others played the game for their rewards in the stock market. Its press releases should have brought the Securities & Exchange Commission poking around; however, since it was Canadian, the US Commission had no authority. I attended Brush Creek’s last shareholder meeting in Nevada City. When I walked into the room, the officers and directors immediately held a quick powwow and announced that there would be no questions taken from the floor. I was a shareholder and had a reason to attend, which was not to confront management but to listen to their spiel and ask for any clarification if necessary. The corporation went bankrupt, leaving its owners, (many older people) high and dry. Corporations like Brush Creek will rise again and in fact are already marketing their pitch to an eager public. It is sad because honest gold mining companies cannot compete with the lies, untruths or deceptions of this crowd. As Peter, Paul and Mary sang many years ago, “When will they ever learn, when will the ever learn.”
I agree with Johnny Yuma that the Kate Hardy has potential and because of its potential would pursue it joining Original Sixteen to One. A Canadian company will exploit it to the ultimate detriment of many. Dreamers with insufficient money to burn may try and likely loose their cash. An extraordinary wealthy person could have some fun; however I would prefer that this unknown wealthy person would come play with us. The Sixteen to One also is fun and much more likely to succeed in mining a lot of gold. All the mines in our area have potential. It is the package of non-geological ingredients that have always separated the winners from the losers. This will never change. Luck has a place in any speculative venture, but luck alone will rarely mark the distinction.
By the way, no one predicted this rapid rise of gold to $600 an ounce. I have no idea what is coming next. I doubt that I would short gold. Has Barrick covered its forward sales? Why is Newmont outperforming Barrick?
|The Kate Hardy mine is a really good mine with great potential. I first visited this mine on 12/7/78. Soon after I took Richard Flatland, the mine owner, a cheque for $500,000., his then asking price. He immediately doubled the price to one million. Since then, I have made several offers, just to be jacked around. The good thing is that I went to Nevada and did well, so I don't have to deal with mine owners who walk around like they have a stick up their ass.
|Well, from what I've read and discussed with others, these mines may be "played out", or nearly so. Of course, the price would merely be the downpayment, as all new equipment would be needed both underground and on the surface.
|Have you Googled: Kate Hardy and Omega Mines?
For a fairly complete discription try:
|Today's Placer Herald (4/5/06) lists the Kate Hardy & Omega Mines for sale for $1,350,000. Anyone know more about these mines?
|Laura: What county is the mine located in?
|FOURTH OF FIVE PARTSHow judges favor the prosecutionBy Fredric N. TulskyMercury NewsIN A FOURTH OF ALL JURY CASES, A REVIEW FINDS, MEMBERS OF THE BENCH APPLY THEIR TREMENDOUS POWERS IN WAYS THAT HURT DEFENDANTS
The first sign that the proceedings seemed biased against her client came when Judge Edward Lee began questioning a witness, attorney Elissa Eckman would later recall.
But that hardly prepared her for what happened near the end of the Santa Clara County robbery trial. Lee left his seat on the bench, took a water bottle to the podium and gave the jury his own closing analysis of the evidence. In his remarks, Lee offered reasons to doubt the witness testimony supporting Eckman's client, expanding on issues raised during his questioning.
``I never saw anything like it,'' Eckman recently said of the trial of Carlos Guerrero. ``It was like having two prosecutors in the room giving closing arguments. Only, one of them was the judge.''
A Mercury News review of five years of criminal jury trial appeals establishes a pattern of judicial conduct that favored prosecutors, with incidents occurring at nearly every step of the proceedings. Santa Clara County judges made missteps or questionable rulings in nearly one of every four of the cases.
The impact of their behavior can be crucial: Judges exert tremendous powers as the arbiters of the courtroom -- determining what evidence to admit at trial, guiding the jury with their instructions, and setting boundaries for the prosecution and defense as thorny issues unexpectedly arise. Often judges use those powers firmly and fairly. But when they fail to do so, their actions may skew the course of the trial.
• Rulings on evidence. In more than 50 of the 727 cases reviewed by the Mercury News, judges allowed prosecutors to introduce questionable -- and often improper -- evidence. In nearly 50 other cases, defense attorneys were restricted from introducing their own evidence, rulings that often raised concerns from appellate justices or independent experts. For example, in one manslaughter trial, the judge permitted the jury to hear the portion of a defendant's statement to police in which he confessed to striking the victim with a board, but not the portion in which he explained that it happened in a frenzy, after he was stabbed, and that he had not intended to kill the man.
• Jury instructions. In 48 cases, judges failed to give the jury appropriate guidance on the law -- in ways that either bolstered the prosecution's view of the case or undermined the defense's contentions. As he directed jurors in a gang slaying case, a judge refused to tell them they should convict the defendant of manslaughter, not murder, if they found he acted ``in the heat of passion'' when he opened fire on rival gang members an hour after someone shot his brother.
• Judicial partisanship. In 10 cases, including Guerrero's, judges made explicit remarks or took actions in the presence of the jury that suggested their bias against the defendant.
All told, the Mercury News identified more than 100 instances when the appellate courts found that trial judges erred in ways that helped prosecutors, and more than 40 additional instances of troubling conduct that the appellate courts declined to assess.
These patterns make a particular impact in Santa Clara County, where the Mercury News investigation has revealed a justice system populated by many aggressive prosecutors and lackluster defense attorneys. As the most significant check on the conduct of both prosecution and defense, the judge is often called upon to protect the defendant's rights.
The Mercury News review found many instances in which judges met that challenge. Judge James Emerson has on repeated occasions acted aggressively to counter overzealous prosecutors -- issuing sanctions, delaying proceedings, even ordering new trials. (Emerson's actions in cases involving prosecutors Benjamin Field and John Schon were detailed Monday.) Then there is the kind of action taken by Judge James Chang, who in a 2000 drug-sale case prohibited phone record evidence gathered by the prosecution because it had been kept improperly from the defense.
``I don't think judges want to commit error, and I don't think judges want to convict unfairly,'' said Alden Danner, presiding judge for Santa Clara County Superior Court. ``I think most judges want to guarantee a fair trial. That's what we are there for.''
On occasion, prosecutors complain that judges err on behalf of defendants, and one Santa Clara County judge was convicted in 2003 for favoring defendants in court. But legal experts who reviewed the Mercury News' findings called alarming the number of instances in which judges boosted the prosecution in their rulings.
``It seems clear that errors have become pernicious,'' said Bennett Gershman, a former prosecutor and now a professor of criminal justice at Pace University in New York who has written texts on both prosecutorial and judicial ethics. In the worst instances, he said, it appears that ``prosecutors know they can overtry cases and push as hard as they want because the judges will not stop them.''
Experts say a variety of factors may influence judges to act in ways that favor the prosecution.
There is the social culture: Defense lawyers for years have complained of the close ties between Santa Clara County judges and prosecutors, and those complaints surfaced in the course of the Mercury News study. Mario Enriquez, for example, argued when appealing his DUI conviction that his trial was tainted because both the judge and prosecutor were members of Los Pescadores de San Jose, a social club whose exclusive membership has long raised concerns in the legal community for reinforcing an ``old-boy network'' among judges and prosecutors who are members.
There is professional orientation: More than a third of the county's 79 judges spent the bulk of their careers in the district attorney's office, following a pattern that developed statewide under former Gov. George Deukmejian. Alvin Goldstein, a former prosecutor and Marin County Superior Court judge who was appointed by the U.S. Department of Justice to help establish a fair judicial system in Iraq, said a judge's background and training are crucial: ``If that is all the legal experience that a judge brings to the bench, there is almost bound to be a predisposition for the prosecution.''
There is political pressure: Nearly 20 years later, the election that ousted California Chief Justice Rose Bird and two associate justices remains a powerful reminder of the risks of being perceived as lenient on crime, at the trial as well as appellate levels. ``I believe there is some pressure, perhaps subtle, on judges in affirming convictions of defendants who appear dangerous to society,'' Arlin Adams, a former federal special prosecutor and retired member of the 3rd U.S. Circuit Court of Appeals, wrote in an e-mail. ``This pressure seems to be greater on judges who are elected, and thus must face voters in the future.'' In California, judges at all levels must stand before voters.
Judge Edward Lee is a former police officer who went to law school and served as a deputy district attorney before becoming a judge in 1991. In 1998, he presided over the case of Guerrero.
The case involved allegations of a parking-lot robbery: The victim's hat and coat were taken, but by the time of the trial, the victim was nowhere to be found. A police officer testified that the victim had accused Guerrero and two others of striking him and stealing the items. But the two gang members who were with Guerrero that night testified that was not true.
In his remarks to the jury, Lee offered guidance on how to sort through the contradictions. He called the gang members ``convicted felons,'' labeling one a ``convicted perjurer,'' and asked jurors to consider whether they could be ``minimizing the culpability or responsibility of somebody else, the other defendant in the car with them that night?'' He also reminded them that the police officer had quoted Guerrero making incriminating statements at the time of the crime -- testimony that Lee called ``extraordinary'' if true.
Despite Lee's comments, the jury ended up deadlocked, causing a mistrial. But Eckman later challenged Lee's conduct in the case, contending he demonstrated bias.
Then, two years later, attorney Thomas Orvis sought to have Lee disqualified in a case by arguing that the judge had established a pattern of bias in other cases including Guerrero's. Lee, he said, ``has a habit and custom of acting as a surrogate district attorney.''
An outside judge, in the Guerrero case, and the 6th District, in response to Orvis' complaint, rejected the concerns. Both noted that California judges have wide latitude to decide how to control the proceedings, and are permitted to make fair comments or ask questions to assist the jury.
Lee said he has done nothing wrong. The judge said he has long tried to ensure that juries are ``understanding and paying attention,'' including offering his instructions to the jury from the courtroom podium instead of behind the bench. On occasion, he said, he also had gone to the podium to summarize his views of the evidence.
But, Lee said, he has been careful to be evenhanded. ``The judge has the duty to make sure the trial is fair,'' he said. ``That is the primary thing.'' Nevertheless, he said, in recent years he has not offered jurors his own summation, nor has he engaged in questioning witnesses.
Several veteran judges said such conduct invites trouble, even if it is permitted under California law. Commenting to a jury on the evidence ``is always a dangerous thing to do,'' said Danner, Santa Clara County's presiding judge, who said he had never done so.
Nor had John Racanelli, a trial judge for more than a dozen years before becoming presiding justice of California's 1st District Court of Appeal, from which he has since retired.
Such behavior, he said, ``runs the risk of stepping out of the role of impartial judicial arbiter,'' and becoming an improper influence over the determination of guilt or innocence.
Eckman, a San Francisco attorney, said Guerrero's case was one of several experiences that made her decide to stop practicing in Santa Clara County after 10 years of trying cases there. ``It just is not a place that is fair to defendants,'' she said. ``It's like living in a different world.''
• Judges often keep the defense in the dark
Judges play crucial roles throughout a case. They decide, initially, whether the case is sufficient for the defendant to stand trial. They instruct the jurors, in the end, on the law to be applied in the case, and then impose the sentence.
But no role is more crucial than the judges' handling of issues of evidence. They determine what evidence can be admitted, and what evidence should be excluded. And they preside over decisions on what evidence the defense can see through the discovery process. Those decisions are especially important when it comes to gang and juvenile cases, where the law limits defense access and the judge must decide whether to grant it.
Often in such cases, defense attorneys are left wondering whether evidence they could not see would have helped them. Only rarely do they learn the answer. Daniel Aleman and his attorney did, and it confirmed their suspicions.
Aleman, 27, and his cousin, 17, were accused of taking part in a carjacking in 1994. The victims' identification of Aleman was shaky; before Aleman went on trial, his attorney filed a petition with the court, seeking to learn what the victims had testified during a closed-door juvenile hearing for Aleman's cousin.
At a hearing on that motion, Judge Thomas Edwards said confidentiality rules prevented him from providing the full record of the juvenile case. But, he said, ``I will be happy to obtain the transcript'' and review it.
In a July 5, 1995, order, Edwards wrote that he had reviewed the file, looking for ``any and all records'' that might help the defense cross-examine witnesses at trial. But, Edwards wrote, nothing in the record met that standard. Aleman was later found guilty and sentenced to 62 years to life in prison.
An odd twist occurred on appeal, when Aleman's attorneys asked the 6th District Court of Appeal to review the still-sealed juvenile transcript to determine whether Edwards was correct. In December 1997, Superior Court officials notified the appellate justices that the court reporter at the juvenile court hearing had died shortly after the proceeding. No transcript was ever prepared.
In September 1998, the appellate panel overturned the verdict, ruling that Edwards' ruling had denied Aleman his constitutional right to effective cross-examination of the witnesses. Clearly, the panel said, Edwards wrongly implied that he had reviewed the witness testimony.
Edwards said in a recent interview that he did not intend to mislead anyone in the case, but that he now recognizes his ruling obscured the fact he did not see the transcript. ``The bottom line is that trial judges are not infallible,'' he said, after reviewing the appellate court decision at the request of the Mercury News. ``I dropped the ball.''
Ultimately, as new questions arose about the strength of the identifications, Aleman pleaded guilty to lesser charges and was released after eight years in custody.
What to admit?
• Rulings often tilted toward prosecution
While disputes over access to evidence recur, a far more common issue involves the admission of evidence: what should be included at trial, what should be excluded -- and why. Of the more than 200 instances of questionable judicial acts tallied by the Mercury News, nearly half involved decisions on the admission of evidence.
As judges consider those decisions, there are many rules to guide them. State statute and court precedent regulate the admission of everything from statements taken outside the courtroom to such prejudicial evidence as a defendant's criminal record. The U.S. Constitution guarantees a defendant's right to present evidence that may raise doubts about guilt.
Still, trial judges have significant discretion to admit or exclude evidence based on their own assessment of its value. And in general, the appellate courts are loath to second-guess those decisions.
Even so, in dozens of cases reviewed by the Mercury News, the court concluded that judges erred. At Shawn Harris' carjacking trial, the judge improperly allowed the prosecutor to introduce a confession that was not given voluntarily. Another judge mistakenly admitted Christopher Nelson's prior drug conviction as evidence at his robbery trial. The issue at Vincent Lopez's trial for vehicle theft was whether he knew the truck in his possession was stolen; the judge wrongly barred a defense witness from testifying that a friend had asked Lopez to watch the truck because he feared it was about to be repossessed.
Crimes involving sex abuse and domestic violence pose special challenges for judges. A decade ago, California lawmakers rewrote the rules in those cases to permit evidence of a defendant's previous acts as proof of guilt -- something that for most crimes is considered unfairly prejudicial. At the same time, new laws have allowed sex-abuse victims to keep past conduct private.
But while those laws have tilted the balance, the Mercury News found some judges go beyond even those relaxed standards to favor prosecutors.
When Angel Oliveras went on trial for aggravated assault of his pregnant girlfriend, Judge Gregory Ward permitted the prosecutor to question the girlfriend's brother about a past incident in which Oliveras had slapped her. But Ward refused to let the defense ask the brother about another incident, in which the woman had falsely accused someone of assault. Oliveras was convicted.
On appeal, a 6th District panel ruled that the evidence of a previous false accusation was wrongly excluded. But the panel called the error harmless because the jury had other reasons to doubt the woman's veracity. For one thing, by the time of the trial, the woman had recanted her accusation of Oliveras. Further, the panel noted, jurors had the chance to see the woman's demeanor on the witness stand.
Michael Kresser, executive director of the Sixth District Appellate Program, said he believes the combination of Ward's ruling and the appellate court's opinion was manifestly unfair to Oliveras. ``If you were a jury trying to determine truth, wouldn't you want to know if the complaining witness had falsely accused other people in the past of the same thing? Or should we pretend it is just as good to see the woman's demeanor?''
• Senior jurist's rulings on evidence stand out
In the Mercury News' review of judges' conduct, certain patterns emerged -- and some individuals appeared in repeated instances. When it came to questionable rulings on evidence, Judge Thomas Hastings is among those who stood out.
Among the most senior members of the Santa Clara County bench, Hastings has presided over such high-profile cases as the murder trials involving victim Polly Klaas of Petaluma, and the Yosemite slayings for which handyman Cary Stayner was convicted. Appointed to the bench in 1980 by then-Gov. Jerry Brown, Hastings had been a defense lawyer throughout his career. Today he sits only on special cases, having retired from the active bench in 2000.
Hastings has long drawn controversy, in part because of what some consider a contemptuous manner -- one lawyer complained that when he served Hastings with a motion to disqualify him, the judge tossed it from the bench.
Many lawyers say Hastings is not considered among the judges who reliably rule for one side or the other. But about half of his cases in the study period contained questionable acts that favored the prosecution, among the highest proportions on the bench.
Hastings did not respond to phone calls or a written request for comment. Speaking generally about judges with recurring instances of questionable conduct, Danner said, ``You have to look at the cases they had.'' Some judges, he continued, have an unusual number of difficult cases -- a distinction that would apply to Hastings.
In the Mercury News analysis, Hastings' rulings on evidence were a recurring issue. A look at some of those rulings illustrates the sorts of decisions all judges face, and just how much discretion the appellate court allows them. Among them are:
• The murder trial of Sonya Daniels, detailed Sunday, in which Hastings blocked evidence that the defendant lacked the intent to harm her son because she was a battered woman.
• The case of a stepfather accused of sexually abusing his stepdaughter, detailed Monday, in which Hastings blocked evidence that suggested the victim might be accusing her stepfather falsely of acts her half-brother had committed.
• The case of George Mendoza, whose attorney sought to undermine the credibility of a witness in his attempted-murder case by introducing her previous misdemeanor convictions for passing a bad check and giving a false name to a police officer.
``I have never up to this point in time even allowed a misdemeanor to be used for impeachment purposes,'' Hastings told Mendoza's attorney as he barred the evidence. On review, the 6th District said it would be wrong for any judge to have a personal rule against allowing misdemeanors, since the law clearly says such misdemeanors are admissible. However, it said Hastings made other statements in court indicating he had considered the issue on its merits.
Experts questioned those rulings, but the the appellate court excused each of them. However, the court ruled in the case of Son Hieu Nguyen that Hastings had gone too far.
Nguyen was facing charges as a result of a gang stabbing outside a Vietnamese cafe. A key witness against him was a rival gang member. Hastings would not permit the defense to ask the witness about the fact that he was on probation, or about his participation in a drive-by shooting for which no charges had been brought. The defense contended that those facts suggested the witness had reason to testify in a way that curried favor with the prosecutors.
The appellate court ultimately found that Hastings had ``usurped the jury's role as the trier of fact,'' by not letting jurors decide if the unprosecuted drive-by offered a motive to assist the prosecution. And it said Hastings ``was apparently operating under certain misconceptions regarding the law'' in his analysis of whether the same witness's probationary status should be excluded.
The panel ruling came after an appellate brief that was striking in its accusations: Attorney Gary Dubcoff contended Hastings had dropped all pretense of fairness, and had more than once referred to himself and the prosecutor collectively as ``we.''
One such moment came when Hastings sparred with the defense attorney over the judge's view that the drive-by shooting incident was not admissible. If the defendant were to take the stand, Hastings offered as an analogy, ``We couldn't do it,'' meaning that the prosecution could not ask about a similarly uncharged, unrelated crime.
Leading the pack
• Third of judge's cases in review had issues
In a system in which the appellate court generally avoids criticizing the conduct of trial judges, Judge Hugh Mullin III earned the court's criticism in more than one-third of his 31 cases that were part of the Mercury News examination. That was more than any of his colleagues.
But Mullin, a former prosecutor who has nearly 20 years on the bench, has an unusual response to the appellate court criticism: He fights back.
After having his sentence overturned in one case, Mullin referred to the ``alleged errors'' found by the 6th District Court of Appeal, adding he was not using ``the word alleged lightly.'' One month later, as he resentenced another defendant whose case had been sent back by the appellate court, he commented that he understands sentencing law well, ``despite what anybody in the Sixth District had to say about it.''
Even more striking were instances in which Mullin squared off against the appellate court not just in his comments but also in his conduct.
Mullin first was assigned to the case of John Michael Parker after the appellate court had overturned Parker's conviction on charges of lewd conduct with a minor. In its opinion, the 6th District ruled that the original judge, Paul Teilh, had wrongly instructed the jury about how to consider evidence of an earlier act of sexual misconduct. Parker's second trial also ended in conviction. And in it, the appellate court found, Mullin ``inexplicably'' gave ``essentially'' the same instruction that caused the reversal the first time.
But Mullin engaged in acts during the trial that caused the court even greater concern. He was ``extraordinarily liberal'' in permitting evidence of Parker's past bad conduct, allowing testimony from the complainant's older sister that Parker had raped her -- though refusing to let the jury learn that Parker had been acquitted of that charge. Mullin also blocked a defense expert who would have cast doubt on whether Parker was a pedophile. That, the court concluded, was an error significant enough to overturn the conviction a second time.
In the case of Jorge Vargas, the court's conflict with Mullin lasted multiple rounds and nearly five years. As Vargas waited in prison, the justices twice sent the case back to Mullin with concerns about the length of Vargas' sentence before, the third time around, modifying the sentence on their own.
Vargas allegedly drove a car of gang members in 1994; as they passed a rival gang, a passenger in the car fired a shotgun blast at the rivals, striking one in the neck. Although there was little evidence Vargas knew of the shooter's intent, Mullin gave him a life sentence for attempted premeditated murder and a series of concurrent sentences for a variety of charges that included 14 counts of firing a weapon out of a car, one for each person in the path of the blast. But the appellate court found that Mullin committed several errors, including sentencing Vargas for the crime of attempted premeditated murder when the district attorney had not even charged premeditation.
Mullin cut the sentence to 15 years. But the appellate court said the judge had not ordered the required evaluation of Vargas from the county probation department -- apparently unaware that Vargas, who had no significant prior record, was eligible for probation.
The third time, Mullin offered a detailed explanation of why he was denying probation as he sentenced Vargas to 14 years in prison. In its third opinion, the appellate court questioned whether probation was the appropriate sentence but said the decision was within Mullin's discretion.
But the appellate court concluded that this time Mullin had wrongly decided to change the sentences for several of the counts of discharging the firearm from concurrent to consecutive. Only one shot was fired, the court noted, and that did not justify consecutive sentences. The appellate court chose not to give Mullin a fourth opportunity. It sentenced Vargas itself to 10 years and eight months -- and he was released soon after because of the time he already had spent in prison.
Mullin also failed to respond to telephone calls and a written request for comment.
• In key phase, mistakes may lead to convictions
The last thing that jurors hear before their deliberations are the judge's instructions on how to apply the law to the case. These instructions, while sometimes technical in nature, are often vital in determining whether the defendant is convicted, and for what crime.
The process is highly regimented. California has adopted a series of standard jury instructions to cover the gamut of crimes. At the close of a case, the judge decides which instructions apply, after both the prosecutor and defense attorney advocate for the instructions they favor.
But repeatedly, the Mercury News review showed, judges err in this phase of the trial. At times the appellate court found that judges mistakenly rejected defense requests for instructions; at other times the court concluded that judges failed to give instructions that are mandatory, even without a defense request. And at times the appellate court found that judges wrongly modified the standard instructions in ways that misstated the law.
In one case in which the jury was supposed to determine whether a defendant was guilty of either robbery or petty theft, Judge Rene Navarro's misleading instructions led the defendant to be convicted of both crimes for the same incident. And in the case of Frederick Brown, the appellate court later determined in a rare reversal, it was only a poor jury instruction that produced any conviction at all.
Brown already had four felony convictions when he was arrested and charged with theft and receiving stolen property. The property at issue was a dirty, broken-down pickup truck that had been sitting in a strip mall parking lot near his home for more than a year. Its registration was long expired, and as the truck sat, it was stripped of parts.
Finally, Brown hired a tow-truck operator to take the car to a house where Brown spent months working on it. Eventually a police officer saw him and determined that the truck had been reported stolen. Brown was arrested.
The case was assigned to Lee, who at one point likened the alleged theft to stealing a pizza. The tow-truck operator testified that the truck looked to him to have been abandoned, and another witness said it appeared to be ``junk.'' Brown did not testify.
Near the end of the trial, Lee refused a defense request that he issue a standard instruction on mistake of fact: If the defendant mistakenly believes that something is abandoned, then he lacks the intent necessary to be convicted. In declining to give that instruction, Lee ruled there was no evidence of what Brown believed.
As the jurors deliberated, they sent a note to the judge, asking for guidance on the law: If Brown believed the vehicle had been abandoned, would he be guilty of any crime? Again, the defense attorney asked for the standard instruction on mistake of fact. Again, Lee refused, telling the attorneys outside the presence of the jury: ``The fact that there is some indication that jurors, some or all of them, may think otherwise, doesn't alter the fact that I don't think there's been any evidence, let alone substantial evidence, of the defendant's intent.''
The jury acquitted Brown of vehicle theft, but convicted him of receiving stolen property. Lee then sentenced Brown, based on his prior strikes, to 26 years to life in prison.
But the 6th District Court of Appeal overturned the verdict, finding Lee failed to give the proper jury instruction despite ample evidence: The truck clearly appeared to be junk, and Brown made no effort to conceal the vehicle, suggesting he did not think he was doing anything wrong.
The case was reassigned to Teilh, who disposed of it swiftly. Rather than proceeding with a second trial, Teilh ruled there simply was not enough evidence to convict Brown. By then, almost four years had passed from the time of his arrest.
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|THIRD OF FIVE PARTSThe high cost of a bad defenseBy Fredric N. TulskyMercury NewsSHODDY, INEPT REPRESENTATION ROUTINELY INFECTS CASES, A REVIEW FINDS -- AND THE DAMAGE TO A DEFENDANT OFTEN LINGERS FAR BEYOND THE TRIAL
At first, after he was wrongfully accused of assault, Bobby Herrera believed he would find a lawyer who could prove his innocence. But in the last emotional minutes before he walked into court, attorney John Pyle was pressuring him to plead guilty.
Pyle already had collected more than $10,000 from Herrera's family. But he hadn't bothered to interview witnesses who could testify that Herrera didn't shoot a guest at his girlfriend's high school graduation party. Nor did Pyle pursue information that Herrera's primary accuser had gone back on her story to friends.
Instead, in the courthouse hallway that day in April 1998, Pyle offered this assessment: Herrera would get no more than a year in jail if he pleaded guilty. If he went to trial, he risked 25 years in prison. And a trial would mean thousands more in legal fees.
Herrera, 19, couldn't bear the thought of costing his parents -- his father was a forklift operator, his mother a home health care provider -- more money they did not have. ``I had no choice but to plead,'' he recalled recently.
But Pyle had misled him horribly. Herrera received a five-year prison sentence. And the family ultimately would pay tens of thousands more in an agonizing legal journey to free Herrera, a journey hindered by more ineffective lawyering and an unsympathetic appellate court.
Herrera's saga -- which was detailed in court records and interviews with participants -- is one of more than 100 uncovered by the Mercury News in which the quest for justice was undermined by poor representation. The paper's analysis, based on a review of 727 criminal appeals, hundreds of interviews and scores of additional cases, provides an unprecedented look at the scope of this problem.
The review showed how attorneys' failures contribute to a system that repeatedly favors the prosecution. Often, the errors were so appalling that they would seem unthinkable even to first-year law students: failing to interview witnesses, gather crucial evidence or know basic criminal law. Experts who reviewed the Mercury News' findings emphasized that another set of problems was just as critical: Attorneys repeatedly failed to respond aggressively to prosecutorial misconduct, a breakdown of the adversarial process that invites violations of defendants' rights.
In the worst cases, as in Herrera's, the attorneys' failures were so fundamental that they left doubts about the guilt of convicted defendants.
Compounding the problem, the review found that the errors plagued defendants far beyond trial. Appellate justices routinely declined to consider allegations of misconduct by prosecutors or errors by judges when attorneys had failed to challenge the behavior at trial.
The newspaper review found the problems began at the earliest stages of a case, and continued all the way through trial and appeal:
• In nearly 20 cases, defense attorneys failed to take simple steps to investigate and prepare their cases for trial. Some attorneys went to trial without ever meeting their clients outside the courtroom. Some neglected to interview obvious alibi witnesses. Some accepted without question reports from prosecutors' medical and forensic experts that were ripe for challenge.
• Once in the courtroom, defense attorneys failed their clients in dozens of additional ways. Some did not introduce key evidence -- including evidence promised to jurors during opening statements. Others did not ask judges for rulings or jury instructions that were crucial to helping their clients. One defense lawyer so misunderstood the rules of evidence that he permitted his client to testify at a preliminary hearing without realizing the prosecutor could then introduce that testimony at trial.
• In 60 cases, defense attorneys failed to object when prosecutors introduced inadmissible evidence, asked improper questions or made prejudicial arguments to juries. Such failures have a lasting impact. Under court rules, appellate panels need not consider errors left unchallenged at trial; instead they can deem them ``waived,'' and outside the bounds of the appeal.
• Attorney errors are not easily corrected. In more than 100 cases, the 6th District Court of Appeal rejected challenges to the attorney's performance by issuing single-sentence orders that lacked explanation. Other cases saw the appellate justices repeatedly rationalize poor conduct. In one instance, they suggested that an alcoholic lawyer's repeated absences and tardiness during trial may have been a knowing tactic to permit him time to sober up before the jury saw him. Twice, justices found no problem with lawyers who could not legally represent their clients because they had been suspended by the State Bar of California.
But the review, as extensive as it was, almost certainly understates the problem: While the Mercury News focused on appellate records, the overwhelming majority of criminal cases settle without a trial or appeal, and no record of the attorneys' efforts exists.
``The level of practice is extremely low overall,'' said appellate lawyer Michael Kresser, director of the Sixth District Appellate Program, which reviews hundreds of Santa Clara County cases each year. Attorneys are trying cases who ``don't know the basic tools of trial lawyers,'' he said, from ``making proper objections and motions to doing adequate investigation to developing a coherent defense strategy at trial.''
Public and private attorneys alike have offered second-rate representation. Deputy Public Defender Victoria Burton-Burke, for example, explained in court papers in one case that she hadn't attempted to learn whether any witnesses who would be testifying against her client had juvenile criminal records -- information that comes only through seeking court approval -- because she was too busy.
But the newspaper review found a telling distinction, in that private attorneys' failings are often driven by money. The most unscrupulous behavior involved a class of private lawyers who take cases for a relatively low fee, and then boost their profits by avoiding a time-consuming trial.
Defendants with language barriers and little education found themselves at the mercy of these lawyers, who pushed them to plead guilty even when it may not have been in their best interest. In 10 cases uncovered by the review, defendants buckled; in four of those cases, including Herrera's, there was significant evidence the defendants were not guilty.
Laurie Levenson, a former federal prosecutor who now is a professor of criminal law and ethics at Los Angeles' Loyola Law School, calls the phenomenon of innocent people pleading guilty to crimes ``one of my biggest concerns. Unfortunately, it happens all the time,'' she added, because guilty pleas ``take a lot less work.''
A little work from his attorney might have produced a compelling defense for Herrera.
The evidence against him was thin: After gang members crashed the graduation party, a gunshot hit an uninvited guest in the arm, and two witnesses told police the shooter was Herrera. But others at the party would have said Herrera did not fire the gun. Character witnesses -- including two college instructors and his boss at an auto shop -- would have described Herrera as a model student and employee who had no criminal record. And Herrera's family had information that one of his two accusers was saying she had been coerced by gang members into falsely implicating Herrera.
Pyle never produced a single clue that he had pursued those leads. Instead, the post-verdict evidence indicates, he had insisted that it ``was the job of the police and the prosecutor'' to interview the witnesses.
Reached in Greece, where he now lives, Pyle conceded that he did little investigative work on the case. But he said he does not recall making some statements the Herreras attribute to him.
His conduct was only one part of the Herreras' defense nightmare.
Zenaida Herrera was set on hiring a private attorney for her son because she was convinced he would get better representation. ``I believed the public defender, they can only do so much, not as much as a private lawyer,'' she said recently, expressing regret that she was wrong. She hired Pyle -- the husband of a woman she had once worked for -- for $10,000 after other lawyers demanded as much as $30,000 to take her son's case.
She had no idea that Pyle was suspended from practicing law for failing to pay his bar association dues. That meant he could not legally represent Bobby Herrera. Nor was she aware that the bar had previously disciplined Pyle for failing his clients, and was in the midst of an investigation that would lead to Pyle's disbarment.
Zenaida Herrera began to learn the truth as she found Pyle's office closed one day, with a deadline for her son's appeal approaching. She went to the police department, where an officer offered an unnerving comment: He hoped she had not hired Pyle for legal work.
Pyle recalls telling Zenaida Herrera he had ``a problem'' with the state bar but ``I didn't tell her what the problem was totally.''
After dumping Pyle, Zenaida Herrera hastily settled a lawsuit over injuries she suffered in a car accident and then used the proceeds to hire two other private lawyers. Each did little to help Bobby Herrera challenge his conviction. But finally, a capable court-appointed lawyer -- the family's fourth attorney -- mounted a strong effort in the appellate courts.
The 6th District did not even bother to ask prosecutors for input before rejecting the appeal. But the state Supreme Court did, and prosecutors did not contest that Herrera's claim had merit. After the court ordered a new hearing, the district attorney's office dropped the case rather than pursue it again.
Finally free, Herrera had spent more than 11 months in prison and more than $30,000 of his family's money. Among other problems, he had defaulted on his student loans while locked up. But he since has married his girlfriend, and they have a daughter.
``I try to go on with my life, to handle it,'' Herrera said of the experience. ``It is behind me now.''
Only a small percentage of defendants suffer the sort of injustice that plagued Herrera. But his case illustrates much about how the normal workings of the justice system can go awry.
Overwhelmingly, defendants charged with felonies plead guilty rather than stand trial -- more than 95 percent of convictions statewide occur before trial. Most often that is because the evidence of their guilt is overwhelming, and their best chance at a reduced sentence is a plea deal. But judges, prosecutors and defense attorneys have another powerful incentive to bargain: The system would quickly break down if a significant number of defendants demanded jury trials, which are enormously time-consuming.
This pressure can become dangerous when amplified by private attorneys who also have a strong financial incentive to avoid trial.
In such instances, the Mercury News found, some attorneys may give clients erroneous legal advice, deny them the benefits of an investigation, demand more money -- anything to get the case over with.
Said appellate lawyer Kresser: ``There are lawyers who will do everything they can to keep from having to go into a courtroom and try a case.''
• S.J. lawyer sanctioned for forsaking clients
One attorney with a history of dodging the courtroom -- to the detriment of his clients -- is San Jose lawyer Rudy Guzzetta. Court records from the 1998 appeal of a San Jose sexual assault case describe a pattern of pressure to plead.
In 1992, Guzzetta persuaded Maria Soto to plead guilty to second-degree murder in the beating death of her 3-year-old daughter, telling her she might get out in less than 15 years if she did, but risked life in prison if she didn't. She got the maximum sentence for the crime, 15 years to life, even after taking his advice.
But Soto won a new trial in 1997, after an appellate panel concluded that Guzzetta had failed to develop evidence implicating Soto's boyfriend, who had a history of beating the child and had been a witness against her. The court also saw a possible explanation for Guzzetta's failure: He was paid by the boyfriend's family to represent Soto, a blatant conflict of interest.
The San Mateo County District Attorney's Office retried Soto, but the jury deadlocked. Soto pleaded no contest to child endangerment and was deported to Mexico.
``She lost everything,'' said John Halley, her attorney in the second trial. ``She lost her home, her family, her ability to stay in this country. She wasn't guilty, but nobody would hear her, including her attorney,'' referring to Guzzetta.
A few years later, Guzzetta made what a judge later called ``a minimal effort'' to develop a defense for Raul Horta Pena, who pleaded guilty to child molestation and was sentenced to 21 years in prison. Pena was allowed to withdraw his plea in 2000 because of Guzzetta's incompetence and struck a deal for eight years.
The state bar placed Guzzetta on two years' probation in 2002 for his conduct in those and other cases, the latest in a series of sanctions for the attorney. But other clients have suffered from Guzzetta's behavior without recourse, among them Jose Reyes Flores.
In 1996, Santa Clara County authorities charged Flores with repeatedly sexually assaulting his stepdaughter. There were reasons to question the accusation: The stepdaughter did not report the abuse until four years after it allegedly occurred, and by then Flores had separated bitterly from the girl's mother. One potential witness said the mother had threatened to make false accusations against Flores.
Nevertheless, Flores pleaded guilty in the midst of a trial in which key defense witnesses did not show up -- after Guzzetta neglected to subpoena them. Flores later said Guzzetta encouraged his plea with a promise to challenge his 18-year sentence, telling him that ``on appeal I could finally present my side of the story.'' That is untrue. It is extremely difficult to present new witnesses after trial, especially when the defendant has pleaded guilty.
Guzzetta never even filed a notice of appeal. Court-appointed attorneys later sought to reopen Flores' case, offering evidence from the Soto case, but were rebuffed by the appellate court.
Flores recently completed his sentence, after time off for good behavior, and was deported to Mexico.
In an interview, Guzzetta defended his actions in each of the cases: ``I never browbeat or told them to take a plea. It's their decision.''
He denied telling Flores that he could present his side of the story on appeal, and denied having a conflict of interest in the Soto case. Further, he said, he does not feel sorry for Soto because he is certain she killed her daughter.
``I don't have anybody plead guilty who isn't guilty,'' Guzzetta said.
The little things
• Simple steps neglected at every stage of trial
When attorneys take cases to trial, the opportunities for shoddy legal work only increase. The Mercury News review found case after case in which defense lawyers failed at the most elementary tasks. The errors came at every stage:
• Pretrial investigation: In a gang murder case, the trial counsel never tried to analyze a tape recording of a confession that included, according to the police transcript, portions that were ``unintelligible.'' After the defendant was convicted, an appellate attorney hired an audio expert who determined that among the unintelligible sections was the defendant's attempt to ask for a lawyer -- which was ignored, in violation of his constitutional rights.
• Opening statements: The defense attorney in a murder case said the evidence would show there were no identifiable fingerprints on the barrel of the revolver that was used in the crime. In fact, as he clearly should have known, the evidence showed his client's fingerprints on the barrel -- and the prosecutor exploited that misstatement along with several others to brand the entire defense case ``wishful thinking.''
• Witnesses: In an aggravated-assault case, one witness had told police at the scene that it was another man -- not the defendant -- who had used a blunt instrument to strike the victim. But the defense attorney made no effort to call that witness to testify, explaining later that she had hoped the judge would allow the police report as evidence.
• Closing arguments: One attorney ended a trial by telling the jury he would not review the evidence because ``I want you to rely on your notes and rely on what is part of the record, the official transcript.'' A legal expert cited in the appeal called the closing argument a ``total abdication by counsel.''
• Failing to challenge prosecutors costly
The Mercury News found that one class of trial errors was particularly damaging for defendants -- errors that involved defense attorneys' failures to act as a check on prosecutors.
When the prosecution reveals forbidden evidence or makes an improper argument, such an action can prejudice the jury's view of the case. But if the defense lawyer fails to object to the improper behavior, the impact may resonate even after the trial. Under the rules of court, issues left unchallenged in the courtroom may be deemed ``waived,'' meaning they are not open to appeal.
The Mercury News found 60 cases in which the 6th District Court of Appeal declined to consider possible errors, saying the acquiescence of the trial attorney served to ``waive'' the issue.
Often these waivers involved evidence so obviously prejudicial that it is difficult to imagine any defense attorney could pass it by. Court cases have long made clear, for example, that a defendant's withdrawn guilty plea should not be mentioned at trial.
Nevertheless, in Daniel Nieblas' trial for possession of heroin, the prosecutor described at length Nieblas' original plea of guilty. He went on to characterize the defendant's decision to withdraw the plea as a ``tantrum.''
Defense attorney Adrienne Dell failed to object to any of the repeated mentions of the plea, although at one point she asked the judge to declare a mistrial, which was denied. The appellate court agreed that the prosecutor's conduct was ``troubling.'' But it said Dell had waived the issue through her failures, so it was not a subject for appeal.
Dell recently said she chose not to object so the jury would not think she was trying to hide something.
The court's use of waiver findings raised another question: whether appellate justices might overuse waiver to avoid declaring error and overturning convictions.
In some cases, the Mercury News review found, the appellate opinions even misstated the facts of a case to justify the waiver -- claiming, for instance, that an attorney hadn't objected to improper evidence when the record showed clearly that he had. Presiding Justice Conrad Rushing said he is especially concerned that waiver may be overused.
In an interview, Rushing said he does not consider it the ``noble thing we signed on for'' to find technical reasons to avoid deciding error. He labeled that technique ``gotcha'' jurisprudence.
• Court stretches to excuse bad counsel
The court's handling of waiver rulings is only a small piece of a larger phenomenon, the Mercury News found: Defendants who blame their convictions on incompetent attorneys rarely find sympathy from the 6th District Court of Appeal.
In part, the court's resistance reflects the mandates of law. A long line of California court rulings has set a high standard to challenge an attorney's representation. The defendant must demonstrate the errors were so severe that a jury probably would have reached a different verdict without them. Even then, a court will not grant relief if it determines the attorney had a tactical reason for the conduct -- perhaps, for instance, the attorney did not object to a prosecutor's fleeting mention of a defendant's criminal history so as not to call attention to it.
In just a handful of cases in the Mercury News review did the court find an attorney's representation so poor that it met this threshhold. Monty Lopez's experience with his lawyer was one. Lopez had been convicted of a felony for resisting officers who came to his house to quiet a disturbance. In the trial, Lopez's attorney sat by while the prosecutor undermined the credibility of defense witnesses with questions about their own past arrests and convictions. Deputy Public Defender Alfred Spielmann, a relatively inexperienced attorney, also failed to object to the introduction of statements that Lopez uttered after he invoked his right to an attorney.
The court said no reasonable attorney would have made those errors. Assistant Public Defender Nancy Brewer said the case spurred her office to provide additional training for its attorneys in countering prosecutors' tactics.
Defendants who fail to overturn their convictions on direct appeal have a second avenue of attack -- the habeas corpus petition, which allows the introduction of evidence not heard at trial. Often these petitions are used to present evidence of an attorney's behavior, such as failure to meet with a client or failure to investigate the case.
The 6th District typically is hostile to these challenges. For every petition it grants, the 6th District rejects more than five others in two words -- petition denied -- without offering an explanation or even asking prosecutors for feedback, the newspaper review found. Even in cases in which the court responds favorably, the defendant generally ends up no better off.
The court orders a new trial in just one in every four of the small pool of cases in which it grants relief. In the remainder, appellate justices send the case back to the Superior Court for a hearing on the new evidence; a sampling of those hearings shows the defendant won relief less than one-third of the time.
``The courts have a bias toward finality,'' said David Sklansky, a former federal prosecutor and a faculty member at the University of California-Berkeley's Boalt Hall School of Law, who reviewed the Mercury News' findings. ``They are not eager to reopen cases and overturn convictions because of attacks on the work of defense counsel.''
The Mercury News review bore this out. Often, the court goes to significant and even surprising lengths to avoid finding fault.
Justices rejected Christopher Taylor's appeal, even though his attorney, Robert Mitchell, was suspended from practicing law throughout Taylor's bank robbery trial for failure to pay child support.
Just because Mitchell could not legally represent Taylor did not mean that his representation was inadequate, the court said.
Nor was the 6th District concerned by the performance of Herman Cowan, who represented Barry Parham during his trial and conviction for possessing cocaine for sale.
From the start of jury selection -- when Cowan said he had a family emergency -- through the verdict, Cowan was late one day after another. Cowan was even tardy for a hearing on whether he should be held in contempt for his repeated tardiness. On several occasions, a frustrated Judge Gregory Ward told the jury that Cowan was the reason for delays to the trial.
Finally Cowan offered Ward an explanation for his repeated failures to appear: The attorney, who already had a history of discipline for misconduct, said he was battling alcoholism. On appeal, Parham contended these absences, and Ward's courtroom expressions of impatience, unfairly turned the jury against him.
But the 6th District Court of Appeal found Cowan's representation to be sufficient -- and said his irregular schedule may have been tactical. Perhaps, the appellate panel said, Cowan had waited to sober up before coming to court ``in order that he could function at the level of a reasonably competent advocate when he did appear.''
Both Mitchell and Cowan eventually were disbarred for a pattern of misconduct -- and the disbarment order for Cowan even cited the Parham case. Nevertheless, Parham served his full sentence, and Taylor remains in prison.
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|158 years ago today.
James Wilson Marshall
Discover's Gold along the American River in Northern California.
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This event sets off the California Gold rush.
January 24th 1848
|FIRST OF FIVE PARTS
Review of more than 700 appeals finds problems throughout the justice system
By Fredric N. Tulsky
The Santa Clara County criminal justice system failed Miguel Sermeno.
Sermeno was arrested on felony hit-and-run charges after walking the
half-block from his house to the scene of an accident. An overzealous deputy
district attorney ignored evidence that pointed to a more likely suspect,
instead winning a wrongful conviction.
The system failed Bobby Herrera.
Herrera pleaded guilty to assault for a shooting he did not commit, buckling
to pressure from an incompetent lawyer who bled his family for thousands of
dollars but never investigated the case. Even after the key witness admitted
she falsely accused him, indifferent state appellate court justices let his
five-year prison sentence stand without explanation.
The system failed Frederick Brown. Brown was sentenced to 26 years to life
for possessing stolen property, after he hauled away a truck that had been
stripped of parts as it sat idly near his home for a year. The trial judge
refused to instruct the jury on a key point of law: Brown was not guilty if
he believed the truck was abandoned.
The three cases are among hundreds examined in an unprecedented three-year
Mercury News investigation of the Santa Clara County criminal justice system
that shows a disturbing truth:
A dramatic number of cases were infected with errors by prosecutors, defense
attorneys and judges, and those errors were routinely tolerated. In dozens
of cases, the errors robbed defendants of their right to a fair trial. And
in a small number of the very worst cases, they led people to be wrongly
The study reveals ``a basic truth about how the criminal justice system
operates,'' said Laurie Levenson, a former federal prosecutor who teaches
criminal law and ethics at Loyola Law School in Los Angeles. Levenson was
one of seven experts in criminal procedures and ethics who reviewed the
Mercury News findings. ``A lot of sausage gets pushed through that machine.
Errors that help the prosecution are common. The uneven nature of criminal
justice is a serious concern.''
The Mercury News began its investigation in late 2002, as concerns emerged
about the quality of justice in a series of high-profile cases. To test how
the system worked more broadly, the newspaper reviewed the records of five
years of criminal jury trial appeals decided by the California 6th District
Court of Appeal -- 727 cases in all. In addition, the newspaper uncovered
about 200 cases of questionable conduct that were not part of the study
period, by reviewing files and interviewing lawyers.
The result is an unparalleled look at the extent, nature and impact of
errors in a criminal justice system.
The review established that in 261 of the appellate cases reviewed -- more
than one in every three of the total -- the criminal trial had been marred
by questionable conduct that worked against the defendant. In only about one
in 20 cases did the defendant win meaningful relief -- either a new trial or
a significantly reduced sentence -- from higher courts.
The problems occurred at every phase of a trial, and in every part of the
. Prosecutors. In nearly 100 cases, the prosecution engaged in questionable
conduct that bolstered its effort to win convictions, the examination
revealed. Some Santa Clara County prosecutors withheld evidence that could
have helped defendants, some defied judge's orders and some misled juries
during closing arguments.
But they did not act in a vacuum. In an adversary system in which defense
attorneys and judges are responsible for guarding against prosecutors'
excesses, the newspaper study found, those checks on the system too often
. Defense attorneys. In 100 cases, defense attorneys acted in ways that
harmed their clients. In nearly 50 cases, the attorneys failed to take the
most basic of measures, from properly investigating their case to presenting
the evidence they gathered. Defense attorneys failed in dozens more cases to
object as prosecutors or judges engaged in questionable conduct, in effect
excusing the mistakes.
. Trial judges. In more than 150 cases, judges made missteps or questionable
rulings that favored the prosecution. Violating legal precedents, trial
judges allowed evidence that unfairly tainted defendants and prohibited
evidence that might have supported their defense. Repeatedly, judges failed
to properly instruct jurors on legal principles, instead offering direction
that made a guilty verdict more likely.
. The appellate court. The 6th District Court of Appeal, the primary court
of review for Santa Clara County cases, upheld verdicts in more than 100
cases even as it acknowledged errors had occurred. The appellate court
simply concluded those errors made no difference in the outcome of the case.
Sometimes those conclusions were appropriate, but a review of the appellate
record and consultations with experts established that in more than 50 cases
the court misstated facts, twisted logic and devised questionable rationales
to dismiss the error.
In nearly all the cases, the 6th District designates its opinions as ``not
to be published'' -- a distinction that means they are not to be cited as
legal authority in subsequent cases, and thus have little relevance beyond
the parties to a case. The Mercury News found that higher courts are
extremely unlikely to review unpublished opinions, making the 6th District
the final word on most criminal trials in Santa Clara County.
The unpublished designation also has served to shield the cases from outside
review. Past academic and journalistic studies of criminal justice, here and
elsewhere, have examined published opinions, even though they represent a
tiny proportion of court decisions. The Mercury News review is unprecedented
in its comprehensive analysis of criminal decisions, published and
State court statistics show the 6th District over time has published a
smaller portion of its criminal cases -- 2 percent -- than any other
appellate district in the state. The statewide average is 4 percent.
Taken together, the Mercury News findings offer a picture of a system that
often turns on its head the presumption that defendants are innocent until
proven guilty. Prosecutors, defense attorneys, judges and appellate justices
often act in ways that cause defendants' rights to be violated.
The newspaper study points to a ``skewed system that disproportionately
bends over backward to help the DA win,'' said Bennett Gershman, a former
prosecutor and professor of criminal law at Pace University School of Law
who has written on prosecutorial and judicial ethics. ``Admitting and
excluding evidence unevenhandedly and overlooking serious errors is not a
pretty state of affairs if one is concerned about fair trials. Nor if one is
concerned about the appearance of justice.''
Another outside check on the system -- media attention -- also has largely
failed. The few defendants with money or connections often can command
attention for their complaints against the system. But the overwhelming
number of cases in the Mercury News examination, even involving the most
serious allegations of error or misconduct, have received scant publicity,
To be sure, the review established that the system usually works. Most of
the county's more than 300 criminal jury trials annually are marked by
judicial rulings that correctly interpret and administer the law, and
prosecutors who faithfully follow court rules and judges' rulings. In most
appeals, the justices properly apply the law to the facts before them. And
even in cases tainted by error, there is rarely reason to doubt the guilt of
But Gershman and other experts say the problems exposed in the Mercury News
examination are serious and reflect a nationwide trend in criminal justice.
The expansion of the rights of the accused identified with U.S. Supreme
Court decisions through the term of Chief Justice Earl Warren in the 1950s
and '60s has waned in recent years. The public mood, worried about crime and
clamoring for more safety, is reflected in tougher laws and court decisions.
Prosecutors and judges who fail to lock up violent criminals do so at their
own political peril.
. DA reiterates concern for ethics
It was not possible to compare Santa Clara County directly to other areas,
because of the lack of similar studies in any other jurisdiction. But this
county has long been conservative on law-and-order issues and prides itself
on a remarkably low crime rate. The district attorney takes an aggressive
approach to charging dangerous criminals, statistics show, and enjoys one of
the highest conviction rates in the state. Judges in the county dismiss
fewer cases than most of their counterparts elsewhere.
District Attorney George Kennedy and his assistants emphasize their concern
for ethics and fairness, and say they have taken many steps to ensure that
trial deputies care more about justice than about winning convictions at all
costs. ``The tenor in the office, for fairness and ethics, is better than
anywhere I know,'' Kennedy said.
His top assistant, Karyn Sinunu, reviewed with the Mercury News more than
100 cases in which concerns were raised about the prosecutor's behavior, and
conceded that she was troubled by some of the conduct. But she said that in
many instances, proper conduct was wrongly criticized, and that in other
cases, the problems amounted to nothing more than honest mistakes.
But the Mercury News review uncovered a series of cases that raised more
troubling questions about the conduct of prosecutors and whether the
district attorney's office is doing enough to curb questionable behavior.
While many errors were isolated incidents, others fell into patterns that
suggested broader problems. And certain prosecutors engaged in questionable
behavior in multiple cases, suggesting either sloppiness or a deliberate
disregard for ethical rules. The Mercury News found repeated instances of
troubling conduct in the career of one of the county's highest-profile
prosecutors, Benjamin Field, including withholding evidence, making
misleading arguments at trial and violating judicial orders.
Instances in which prosecutors, defense attorneys or judges err generally
have little impact on the outcome of a case -- while any error raises, at
least marginally, the likelihood of conviction, few cases go to trial
without overwhelming evidence of guilt. But the Mercury News examination
shows a number of cases in which the problems seemed to have greater impact.
``The system is built to tolerate errors,'' said Levenson, the former
prosecutor. ``One problem is that errors increase the small risk that
innocent people can be convicted. And no one can say for sure how often that
In 2003, two men convicted of Santa Clara County murders were set free amid
judicial findings that police or prosecutor misconduct helped convict people
who were probably innocent. One involved Glen ``Buddy'' Nickerson, who
served 19 years before U.S. District Judge Marilyn Hall Patel overturned his
conviction. The second was Quedellis Ricardo ``Ricky'' Walker, who spent
nearly 12 years in prison before top prosecutors acknowledged that improper
deals with unreliable witnesses had caused an injustice.
The newspaper probe identified several other cases in which doubts about
guilt lingered after trials marred by questionable conduct. Some of those
convictions were ultimately overturned in subsequent proceedings, although
without the public notice the Walker and Nickerson cases drew. In two of
those cases, the decision not to retry the defendant occurred as prosecutors
reviewed concerns raised by the Mercury News.
After the Walker case, the district attorney's office took several
significant steps, including mandatory training of assistants, to
re-emphasize the need to be vigilant against wrongful prosecutions.
Kennedy said he has sought to guard against wrongful prosecutions since he
took office in 1990. But, he said, the Walker case was a revelation to him.
``I thought before Ricky Walker that it was impossible'' for an innocent
defendant to be convicted and lose a motion for a new trial. ``I thought it
was impossible. Now I know that it isn't.''
. Mistakes lead to jail in hit-and-run case
The case against Miguel Sermeno is the system's worst nightmare: A series of
misjudgments and mistakes led to the wrongful conviction of a man who was in
the wrong place at the wrong time.
The yearlong ordeal began as Sermeno stood among a small crowd around the
scene of an East San Jose hit-and-run in August 1995. A group of three
bystanders thought he resembled the driver, and told police.
The investigating officer approached a frightened passenger who remained
with the hit-and-run vehicle after the driver fled. He told her she could be
locked up if she tried to cover up a crime, and asked whether Sermeno was
the driver. She said yes, then quickly recanted.
Prosecutor Terence Tighe developed a theory that the passenger was lying to
protect Sermeno because of their ``relationship,'' even though there was no
indication the two knew each other. Tighe overlooked evidence suggesting the
registered owner of the car was the driver who fled, and then withheld
information that could have helped the defense find the owner.
The assistant public defender chose not to present testimony from the
children who also were in the car -- and who maintained all along that
Sermeno was not the driver.
The trial judge refused to accept as evidence a photograph of the registered
owner of the car, and rebuffed the public defender's complaints that he had
no opportunity to show the picture to the witnesses and ask whether the
owner might have been the driver instead.
After Sermeno was convicted for a felony hit-and-run, evidence emerged
casting further doubt on Tighe's theory that the passenger was protecting
Sermeno and not the far more logical suspect: The car's registered owner,
whom she had denied knowing, was the father of her newborn baby.
The prosecution opposed granting Sermeno a new trial nonetheless. His
court-appointed appellate attorney, Sheri Cohen, became baffled by the
system's unwillingness to recognize her client's innocence. ``When I would
go to a party and talk to people about the case, they couldn't believe that
this man had been convicted and that officials were fighting to keep him
convicted,'' she recalled.
A 6th District panel affirmed the conviction but ordered a hearing to
consider the impact of the public defender's failure to call the children in
the car as witnesses.
Finally, supervisors in the district attorney's office elected to drop the
charges rather than retry Sermeno. By then, more than two years had passed
since Sermeno's conviction and he had long since served his eight-month term
But the district attorney's office never formally acknowledged his
innocence. In a recent interview, after hearing a reporter recount the
reasons to question Sermeno's guilt, District Attorney Kennedy responded:
``If you have concluded he is innocent, I accept that.''
. Crucial evidence often withheld from defense
Few cases in the Mercury News' review were as thoroughly twisted by a series
of transgressions as Sermeno's. But the review demonstrates that such errors
widely infect criminal cases, from before the trial through the appeal.
Perhaps the most contentious area involves the obligations of prosecutors
and defense attorneys to exchange evidence promptly before trial, a process
These disputes often begin with a complaint from a defense attorney that
prosecutors ignored their legal obligation to turn over material needed to
prepare the defense case. In dozens of cases reviewed by the Mercury News,
judges stepped in to order prosecutors to turn over additional evidence;
often they chastised the prosecutors for not being more cooperative.
Discovery issues continue post-trial as well; 25 appellate cases reviewed by
the Mercury News involved significant concerns that prosecutors withheld
evidence that might have cast doubt on the defendant's guilt. Over and over
again, defense attorneys learned only after the case was tried that
prosecution witnesses had questionable backgrounds that cast doubt on their
credibility; that scientific reports were not as conclusive as juries were
led to believe; that there was evidence that someone other than the
defendant had committed the crime.
To defense lawyers, such issues are especially troubling for two reasons.
They complain there is no way to know the number of cases in which evidence
that might have changed the outcome was withheld. And they express distrust
about prosecutors' motives, suggesting some evidence is intentionally
But after reviewing the cases raised by the Mercury News, chief assistant
district attorney Sinunu said evidence often was withheld not for nefarious
reasons, but because of mistakes or because the prosecutor was not aware of
its existence. Kennedy said he believes appellate defense attorneys
regularly exaggerate claims of withheld evidence, in a desperate effort to
overturn convictions. Kennedy and Sinunu both said that their office policy
is to err in favor of turning over evidence and that attorneys who fail to
do so are warned about such conduct.
Still, problems persist.
Apolonio Solorio spent five months in jail, accused of a February 2003
robbery at a liquor store in San Jose, after the store owner identified him
as one of the culprits. It took defense attorney Andy Gutierrez months, and
request after request, before a clear copy of a store videotape that
captured the robbers was turned over. After the tape was digitally enhanced,
the deputy district attorney quickly realized Solorio was the wrong man and
moved to dismiss the charges.
It might seem an exceptional situation: A defendant's alleged crime is on
videotape, and yet his attorney must fight to get this crucial evidence. But
it wasn't exceptional for Gutierrez. Five years earlier, a similar thing
happened when he represented Shehabeddin Elmarouk, charged with assaulting
officers in the Santa Clara County jail.
The videotape that was initially provided showed only an inconclusive
portion of the incident. Three weeks before trial, after six months of
trying, Gutierrez obtained the full videotape, which showed the corrections
officers brutally beating his client. A jury acquitted Elmarouk, who later
received $110,000 after suing the county over the incident.
But when evidence of importance to the defense does not surface in a timely
way, jurors are left with a misleading picture of the case as they
Take the case of Mark Crawford, who had five prior drug-related convictions
when he was arrested in January 1998. In his house, police armed with a
search warrant found a duffel bag containing methamphetamine under a
staircase. They also found drug paraphernalia elsewhere in the house and
methamphetamine in Crawford's system.
Only one thing complicated the case. Inside the duffel bag were a motorcycle
repair receipt and a traffic ticket, both bearing the name Richard Hara.
The prosecutor, Troy Benson, was undeterred. He called a police sergeant at
trial to testify that drug dealers often stash false identity papers with
The defense presented no evidence. In his closing argument, defense attorney
Eben Kurtzman argued to the jury that the drugs belonged to Hara. Benson
rebutted that argument by telling the jury, ``The fact is, you have no
evidence that Richard Hara possessed these drugs. The only evidence that you
have are two receipts. You have no evidence that Richard Hara ever lived in
this house or was ever in this house.''
What Benson never did, he acknowledged to the Mercury News, was conduct
inquiries into Hara. Neither did Kurtzman, who, like at least 18 other
defense attorneys in cases reviewed by the Mercury News, failed to take
simple steps to investigate or prepare for trial. He later said he did not
hire an investigator because Crawford had no money for one.
Yet as an appellate attorney discovered after Crawford's conviction, there
was plenty of easily obtainable evidence that the drugs may not have been
Witnesses were available to testify that Hara stayed in the apartment and
that the duffel bag was his. And at the very time the charges against
Crawford were pending, Hara himself was arrested in Santa Clara County for
allegedly possessing methamphetamine. Months before Benson would hint to a
jury there was no evidence that Hara existed, his office agreed to a deal
that sentenced Hara to four months in jail and a required rehabilitation
program. Benson said he did not know of Hara's arrest and therefore had no
information to provide during discovery.
Asked by the Mercury News to review the case, top officials in the district
attorney's office were not perturbed by evidence that Hara existed after
all, and offered a new theory of the crime: Hara and Crawford probably were
involved in drugs together, so the evidence implicating Hara did not
necessarily exonerate Crawford.
To date no court has been willing to say that Crawford was denied a fair
trial. He remains in prison, having never had the opportunity to present the
evidence on Hara to a jury.
`Again and again'
. Frequency, nature of problems worry experts
Withholding evidence is just one of many types of questionable prosecutorial
conduct documented by the newspaper review. In 37 cases, prosecutors or
their witnesses revealed evidence that the judge had banned from the trial;
in more than 40 cases, prosecutors misstated the law, disparaged the
defendant or his attorney, or made other sorts of improper statements during
closing arguments; in eight cases, prosecutors took advantage of judicial
rulings, telling jurors that no evidence existed to support a defense
argument when the truth was the judge had prohibited the defense from
presenting the evidence.
In more than 50 other cases, judges endorsed the prosecutors' behavior,
making the questionable conduct the judges' own responsibility.
Experts who reviewed the Mercury News findings said the number and nature of
the issues involving prosecutors suggest that some of the conduct was
deliberate -- or at least was not being effectively prevented. Of particular
concern was some conduct that occurred in patterns.
``When you see something happening again and again, you have to question if
it isn't happening by design,'' said Gershman, the law professor at Pace.
Prosecutors in nine cases trivialized ``reasonable doubt'' in ways that drew
criticism from the appellate court. Using strikingly similar analogies,
these prosecutors sought to convince juries that it was easy to overcome
such doubt, comparing it to the minor doubt one might have about the risk of
an accident when driving through a green light, or making a left turn, or
getting on an elevator, or boarding an airplane.
In 16 cases, prosecutors or their witnesses revealed to juries that
defendants were in custody, or on probation, or on parole, generally despite
specific orders from a judge not to do so. Judges typically prohibit
evidence that could bias the jury against a defendant when it has no direct
connection to the crime.
Sinunu, the chief assistant district attorney, admitted that the improper
disclosure of evidence does recur. But, she noted, sometimes it is
inadvertent -- lawyers and witnesses on occasion blunder as they try to
follow the rulings. And at times, she said, witnesses -- police and victims,
especially -- wrongly think they are helping the prosecutor when they blurt
out information the jury is not supposed to learn.
But after reviewing the Mercury News findings, University of
California-Berkeley law Professor David A. Sklansky, a former federal
prosecutor, said the number of such improper revelations seemed high. ``This
is the type of thing that prosecutors should be able to stop if they wanted
to, by making it clear to witnesses that it will not help and is improper to
Asked about Sklansky's conclusion, Kennedy conceded it was ``a fair point.''
Another matter of concern, experts said, are cases in which a single
prosecutor engages in a series of questionable actions. Such cases suggest,
they said, that the deputy district attorney either did not respect ethical
boundaries or had, in the heat of the courtroom battle, lost a sense of fair
In 2001, Joey Villarreal was charged with possessing methamphetamine for
sale after the police found him with a duffel bag of drugs and, when patting
him down, a pocketknife. Before trial, Judge Marliese Kim told Deputy
District Attorney Sumerle Pfeffer Davis to instruct her witnesses that the
knife was not to be mentioned.
Nevertheless, during trial, Davis asked a police officer what he found when
he patted down Villarreal. He responded, ``I remember locating a large
pocketknife in his pocket.''
Away from the jury, Davis told the judge she had failed to advise the
officer of the judge's order.
But that was not Davis' only mistake. In a sharply critical ruling, the 6th
District also found that Davis had failed to provide to the defense
statements by Villarreal at the time of his arrest, and that she overstated,
in opening and closing arguments, the amount of methamphetamine in evidence.
Even as the appellate panel upheld the verdict, it stated that Davis'
``repeated failures -- to uphold her duties as an officer of the court --
were injurious to the dignity and integrity of our criminal justice system
and raise questions about her ability or willingness to adhere to the laws
of this state.''
Sinunu, the chief assistant district attorney, said that although Davis had
erred at trial -- and had received training on courtroom conduct as a result
-- officials in her office believed that the 6th District had unfairly
exaggerated the error.
. Appeals court routinely justifies alleged errors
Although the court's language in the Villarreal case was unusually sharp,
its conclusion was typical. In a system in which errors can lead to
disastrous consequences, the ultimate check on most questionable conduct --
the 6th District Court of Appeal -- routinely excuses it.
The 6th District, which covers Santa Clara, Santa Cruz, Monterey and San
Benito counties, was carved more than two decades ago out of the 1st
District Court of Appeal, which oversees the rest of the Bay Area. It has
long been regarded as the most conservative appellate court overseeing an
urban area in California -- a reputation stemming in part from the role of
law-and-order Gov. George Deukmejian, a former attorney general, in
appointing its first eight justices.
California does not routinely release detailed statistics on how its
appellate courts handle cases, and the available statistics are difficult to
compare because court practices vary. But a Mercury News computer analysis
of 20 years' worth of appellate decisions shows that the 6th District
upholds convictions in 97 percent of the cases it hears.
To reach that level, the Mercury News determined, the court often went to
great lengths to minimize or explain away the errors that were alleged in
many of those cases.
For example, the review found 30 cases in which the appellate court
misstated the facts or the law in ways that bolstered the decision to affirm
the conviction. In one case, the court contended two defendants on trial for
assault did not challenge the assertion that they had attacked the victim,
when the trial record clearly showed they denied the attack.
The mistakes occurred exclusively in unpublished decisions -- suggesting, to
experts such as UC-Berkeley law Professor Stephen Barnett, that judges take
less care with those cases. But the impact of not publishing may go beyond
Arlin Adams, a former federal appellate judge and special prosecutor, said
he has ``long been concerned'' that judges give unpublished opinions short
shrift. ``Writing an opinion for publication often forces the writer to
analyze more carefully alleged errors,'' he said.
A Mercury News review documented just how powerful the unpublished
designation can be in protecting a case from further scrutiny. By examining
the opinions of the California Supreme Court over a 15-year period, the
newspaper established that the state's highest court rarely reviews appeals
in unpublished cases, given that the appellate court's decisions in those
cases have no legal authority; during the past decade, the court has
reversed only about two unpublished opinions of the more than 3,000 defense
appeals it receives annually from all six appellate districts.
A rare reversal
. Justices acknowledge a damaging misstep
The case of Darcius Butler is the exception in which the 6th District
concluded a single prosecution error was sufficient to order a new trial. In
reaching that decision, the court acknowledged a crucial issue about the
system: Small errors can lead to the wrongful convictions of people against
whom there is not strong evidence of guilt.
A jury concluded Butler was the black man with braids who burst into a San
Jose home in 2001 and terrorized Lisa Stuffel and her two children. Police
initially came to suspect him after a witness identified Thomas Butler as a
member of the robbery team and speculated that a robber she could not
identify might have been his brother.
Darcius Butler, Thomas Butler's half-brother, had worn braids just weeks
earlier. But neither the driver nor Stuffel's children could pick him from a
photo lineup, though the children later identified him in court. Stuffel
said the photo of Darcius Butler ``looks like'' one of the people who came
into her home. But there was no physical evidence linking Butler to the
crime, and relatives vouched that he had been at a party the night of the
As the prosecution was making its case in court, a police officer referred
in testimony to Butler's parole agent; later, the prosecutor himself
reminded the jury of ``Agent Houston.'' That violated a pretrial order from
Judge Alden Danner that no references be made to Butler's criminal history
-- he had been in prison on drug charges -- because it might bias the jury.
Danner told the jury to disregard the references, and Butler was convicted
and sentenced to 17 years in prison.
But two years later, a 6th District panel overturned the verdict, ruling it
was ``reasonably probable'' that Butler would have been found not guilty
without the mention of his parole. In its analysis, the court focused not
only on the error, but also on the questionable nature of the witness
identifications. And in determining how strong the evidence was, the panel
concluded that the jury also considered it ``a close case,'' citing the
jury's three days of deliberations and its requests to review testimony. In
the end, the trial was ``irreparably damaged'' by the mention of his parole
status, the court said.
As prosecutors were considering retrying Butler, the case continued to
erode: Butler passed a polygraph examination, the witnesses developed new
doubts about their identifications, and two of Butler's co-defendants said
he was not part of the robbery team. The Mercury News brought the growing
questions about the evidence to supervising officials in the district
attorney's office, which undertook a re-examination of the case.
Ultimately, prosecutors offered Butler a deal that he took shortly before
Christmas 2004: Plead guilty to false imprisonment and get out of prison
Supervising Assistant District Attorney David Tomkins said he remains
convinced of Butler's guilt, despite the court's ruling and the problems
with the evidence. Defense attorney Patrick Kelly is no happier.
Although colleagues offered Kelly congratulations on winning freedom for
Butler, he told a reporter, ``I feel horrible about it. I believe my client
was innocent, and that makes it impossible to feel good about this
Refusing to act
. Court says most errors are too small to matter
The Butler case stands out as one of the rare instances in which the
appellate court was concerned enough about the evidence of guilt to overturn
the verdict. More commonly, the court concludes the evidence is so
overwhelming that whatever errors marred the trial do not matter.
The Mercury News' analysis of five years of appeals showed that in at least
107 instances, the court agreed that a prosecutor, defense attorney or judge
had erred, but it called the errors harmless. In 79 other instances, the
appellate court said there was no need to determine whether an error had
occurred, because it would have been harmless anyway.
The U.S. Supreme Court has made clear that some level of error is
acceptable: Defendants are not entitled to perfect trials, an impossible
goal, but to fair trials.
But experts note there are dangers when a court routinely upholds
convictions in the face of serious errors. For one thing, the appellate
court is doing less than it might to discourage misconduct. If the appellate
court, for instance, regularly finds that trivializing reasonable doubt is
harmless, prosecutors are not necessarily deterred from doing so.
Even worse is the danger that the justices may wrongly assess the impact the
errors had on the case. Not only is it difficult to determine how much an
error influenced the jury, but justices also may misjudge the strength of
the case themselves because of evidence that was excluded or wrongly
Nowhere is the court's tendency to shrug off errors more striking than in
cases that involved heinous, high-profile crimes, where a reversal might
lead to the release of a dangerous criminal.
One powerful example is the appeal of Sonya Daniels, a Milpitas resident
whose young son, Jory, starved to death in 1994. The case was shocking, and
created outrage in the community.
Daniels was tried along with her husband, Brian. The two were convicted of
second-degree murder and sentenced to 15 years to life in prison. But both
the trial and appellate courts reacted contemptuously to Sonya Daniels'
argument that her role in Jory's death could not be considered without
appreciation for her status as a battered wife.
In a three-month trial in 1998, the jury heard a sordid story of child
abuse. Jory, 5, weighed 19 pounds at the time of his death and was so thin
that the shape of his bones could be seen through his skin.
The jury heard that Jory and his younger brother often complained of being
hungry and were sometimes denied food and water as punishment. They also
heard that the abuse had a long history -- as an infant, Jory had been
removed from his parents because of a fractured skull and leg.
But an equally sordid tale was not told at trial. Sonya Daniels claimed she
experienced extreme abuse at the hands of her husband, including rape,
sodomy and beatings with a belt. Once, angry over her refusal to have an
abortion, she said, Brian Daniels had locked her in a closet and deprived
her of food and water for three days.
A 1991 state law encourages judges to admit testimony about Battered Women's
Syndrome and its effects on the behavior of victims of domestic violence,
but Superior Court Judge Thomas Hastings ruled that law did not apply in
this case. He refused to permit a psychotherapist who specialized in family
violence to testify that Sonya Daniels had been battered so severely that
she was not aware of the danger to her children, and that she lived in fear
that made her incapable of protecting them.
In a highly emotional scene, the prosecutor repeatedly asked Sonya Daniels
why she failed to protect her son from starvation, knowing she could not
mention her claims of abuse. Over and over, Hastings reprimanded her and
threatened contempt as she complained that she was not allowed to answer.
Her attorney, James Leininger, continued to complain to Hastings. But
Leininger's efforts, which later drew a rebuke from the appellate court for
showing ``appalling disrespect'' to the judge, failed to persuade Hastings
to change his ruling.
But Sonya Daniels' difficulties in presenting her defense were just
beginning. After both she and her husband were convicted of second-degree
murder, Leininger introduced her parents to another attorney, Brenda Malloy,
who Leininger contended would be a good choice for the appeal. She would
turn out to be a better choice for Leininger than for Sonya Daniels.
Malloy told her it would cost $25,000 for the appeal, and months later,
according to court records, the first $10,000 was countersigned and
deposited in Leininger's account.
Malloy filed an appellate brief on Sonya Daniels' behalf that was thoroughly
lacking in legal research, offering only the barest indication of past court
decisions that would normally be the heart of any appeal. The attorney
general, in a rare step, argued that the appeal's discussion of the
battered-woman issue was not coherent enough to warrant a response.
Then, on July 21, 2001 -- the day that the case was scheduled for oral
argument before a panel of justices -- Malloy failed to show up altogether,
and the argument went ahead without Sonya Daniels being represented.
Malloy was out of the country at the time, and was being investigated by the
State Bar of California concerning allegations of shoddy representation of
other Santa Clara County defendants. She eventually gave up the practice of
law, state records show, after the state bar disciplined her as a result of
Reached in Ireland, Malloy twice hung up when a reporter asked about the
Daniels case. Leininger did not return phone calls.
Sonya Daniels found a new attorney days after the oral argument, but the 6th
District would not permit her to file a new brief.
Seven weeks later, the appellate court issued its opinion, one that stands
out even for a court that has routinely dismissed appeals. Even as it
sharply criticized the work of Leininger and ridiculed the appeal of Malloy,
the three-justice panel rejected the idea that better legal work might have
made a difference.
The court said it would consider the question of whether Hastings improperly
restricted Daniels' defense even though Malloy's brief was below ``the
standards of competent appellate counsel,'' because at least she had
``presented some discernible arguments.''
But it rejected other issues Malloy sought to raise, saying her woeful
submission did not merit consideration on those issues.
The court went on to endorse Hastings' ruling barring the battered-woman
defense, and to affirm the convictions of Brian and Sonya Daniels. Sonya
Daniels appealed without success to the California Supreme Court and has now
turned to federal court.
The 6th District rulings ``completely distorted the process,'' said Janice
Lagerlof, who now represents Sonya Daniels. ``Instead of hearing the issues
properly argued, they made up what the arguments should have been, and then
answered those arguments. Sonya Daniels was kept from defending herself at
trial, and then 6th District denied her the chance to present her case on
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|Too many defendants suffer a fractured justice system
SANTA CLARA COUNTY SHOULD LEAD THE WAY IN KEEPING ERRORS OUT OF OUR
Mercury News Editorial
A Mercury News special report on criminal trials in Santa Clara County that
begins today is a stinging indictment of a system that is failing too often,
at every level.
After reviewing more than 700 cases, reporter Rick Tulsky has uncovered
systemic failures by all involved: prosecutors, defense attorneys, trial
judges and the appellate court.
In one in three of the cases reviewed, the criminal trial had been marred by
questionable conduct that worked against the defendant. In a small number of
egregiously flawed trials, people were wrongly convicted.
Legal experts say the problem is not isolated to Santa Clara County, which
has a generally well-respected criminal justice system. It is rampant in
courtrooms across the country.
With the nation becoming increasingly tough on crime, the responsibility of
the justice system to be fair and honest grows proportionately. We need
effective checks and balances to ensure that people accused of crimes in
this ``three strikes, you're out'' climate are treated fairly.
The most alarming finding of Tulsky's investigation may be this: Much of the
legal community appears satisfied with a ``good enough'' criminal-trial
While the courts appear to render justice in the vast majority of cases,
this exhaustive investigation should be a wake-up call to the legal
community and defendants-rights groups. There is room for significant
improvement. Like many other government functions, the justice system needs
more accountability and transparency.
State and local bar associations, including the defense bar, and the state's
judicial performance commission should establish regular, proactive spot
checks of criminal cases to look for problems and for patterns of flawed
They should establish better training for lawyers and judges, and they
should be more aggressive in disciplining professionals who fail to meet
The system's overall performance should be reviewed annually, perhaps by
retired judges and lawyers, and the report should be publicized and made
easily available to the community.
By its very nature, the criminal justice system is supposed to be packed
with safeguards among the prosecutor, defense attorney, judge and appellate
court. But our report, which runs through Thursday, shows that in a high
number of cases the odds are stacked against the defendant -- and the blame
is shared by all involved:
. In nearly 100 cases, prosecutors engaged in questionable conduct,
including withholding evidence, defying a judge's orders or misleading
juries. Prosecutors are the key players in a criminal case because they
determine what charges are filed and decide whether to negotiate a plea
bargain rather than going before a judge or jury. Experts say individual
prosecutors reflect the dominant culture in their office, and too often it's
all about winning rather than ethics and fairness.
. In 100 cases, defense attorneys failed their clients by neglecting to do
even the most basic independent investigation or to raise objections to
questionable prosecution tactics. Experts suggest that local bar
associations, including the defense bar, establish strict standards for
determining when a lawyer is qualified to represent a criminal defendant.
. In more than 150 cases, judges failed to oversee trials impartially and
repeatedly failed to properly instruct juries. Judicial councils and judges
associations must be more aggressive in providing training and rooting out
bad jurists. In general, they need to be more critical of their colleagues
and willing to identify those who should not be on the bench.
. In more than 100 cases, the 6th District Court of Appeal upheld verdicts
even while acknowledging trial errors, deeming them ``harmless.'' While that
might have been true in some of the cases, judges devised questionable
rationales to dismiss others. The court reviews errors from a judicial
perspective, not a community one. Would a jury view these errors as
``harmless''? Experts believe that appellate judges must be more wary of
using the ``harmless error'' rule.
The 6th District Court, which upholds 97 percent of all convictions, also
publishes only 2 percent of its rulings -- the lowest percentage in the
state -- which means its work is relatively hidden.
Of course, the system promises only a fair trial, not a perfect trial.
``Juries aren't going to hear the whole truth anyway,'' one veteran
prosecutor said. True. Lawyers on both sides try to pick a favorable jury
rather than taking a random sample. They may shop for judges who will favor
their side. And the high cost of a good defense inevitably gives wealthy
defendants a better chance than impoverished ones.
But in too many cases, the concept of ``innocent until proved guilty'' seems
to shift to ``guilty until proved innocent.'' And if it's happening in this
generally well-respected system, it is undoubtedly happening elsewhere.
Defendants, who have the most at stake, need to be able to count on a system
of the highest integrity, with checks and balances that work. Santa Clara
County should show the way.
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|This topic asked, “What is gold really worth?” Well, today it was worth $560 for one ounce of .9999 gold. For those who store it as a valuable asset, the daily fluctuations in price are immaterial. The direction of the changing price, however, is at least interesting. Most American investors do not hold a gold position; therefore, its worth is likely a meaningless blip on the financial pages….until fear, greed, nervousness or envy sets in. These behaviors have repeatedly happened in the past, especially the past thirty years once our governmental chains that wrapped around gold were severed.
Still most speculators and investors will get it wrong. The professionals know this and will count on it over the next volatile five years. Jack Sirard runs the business page of the Sacramento Bee. He is a competent writer in his field and rose to the position of top dog from within the company. Last Sunday he wrote maybe his second editorial on gold. (His like most mainstream publications relate a predictable history not forethought about the topic of gold.) Guess what he touted as a preferred way to join the gold bull market?
There is a history that is traceable to 1975, when Americans could once again possess physical gold and gold mining companies could sell into a free market. I was fortunate to live that history, which took me from meetings in San Francisco to New York. While there will be similarities between the exciting days of gold’s past and the current bull market, the current business of investment and speculation already has nuances not found in past performances. My dad instructed me about speculation and about the behaviors of the bulls and bears. He sure told me about the pig, too. Since this topic evolved into an animal theme, the catbird, I offer two more animals worth considering as we evaluate the to influences of the gold market: the lion and the wolf. If you guessed that Mr. Sirard named numismatic coins as the preferred method of playing the gold market, you were right. His source is wrong.
When Rae asked me if I saw the price of gold today and then told me it hit $561, I got nervous. It is behaving much stronger than I anticipated.
|I learn something everyday. I thought Mike was joking with his reply, went to Gerard's link (using copy paste) and found that Mike's reply was factual as was Ricks.
I didn't mean to change the subject. Read the article on KITCO re: the real value of gold as well. http://www.kitco.com/ind/Hamilton/jan132006.html
"PHRASE OF THE DAY" catbird seat
Charles E. Jones wrote:
I was wondering if the phrase sitting in the catbird seat has a similar origin to cat's pajamas, or if catbirds are known to sit in particularly advantageous places?
For me, the expression sitting in the catbird seat--which means 'to be in an advantageous situation or position'--has one derivation, and one only, and that is James Thurber's story of the same name. "The Catbird Seat" is a mordant, clever, very funny tale of a mousy man who plots to kill a woman in his office who is driving him crazy with her braying questions:
"Are you hollering down the rain barrel? Are you scraping around the bottom of the pickle barrel? Are you sitting in the catbird seat?"
The man, whom Thurber identifies only as Mr. Martin, asks his assistant to explain what this woman (wonderfully named "Ulgine Barrows") means:
"She must be a Dodger fan. Red Barber announces the Dodger games over the radio and he uses those expressions....'sitting in the catbird seat' means sitting pretty, like a batter with three balls and no strikes on him."
Red Barber, for you non-baseball fans, was not a fictional character. He was a popular radio announcer for the Brooklyn Dodgers in the 1940s and '50s. Barber had a musical, soft Southern accent that somehow seemed perfect for Dem Bums, and he in fact did use those Southern expressions. After he retired, he wrote about his long career in baseball in Rhubarb in the Catbird Seat. Barber claimed to have picked up the phrase from a fellow poker player. It's definitely Southern, and probably 19th century, but is officially listed as "origin unknown."
As for the question of whether in the catbird seat and cat's pajamas have similar origins, the answer is no. These two expressions are not related, because one refers to a cat and the other to a catbird--which is a real bird. The catbird is part of the Mididae family, as is the mockingbird. The new and justifiably heralded Sisley Guide to Birds says the catbird (Dumetella carolinensis) has a call that is "a hoarse catlike mewing." For those of you who would like actually to hear the catbird's call, you can go to the Patuxent Wildlife Research Center site (part of the Department of the Interior), and you'll find a link to the bird's call. You'll need the proper software, but even if you don't have it, there's a photograph of the catbird and lots of good information. Does it sound like a cat? You tell me.
But more importantly, how do we link the catbird itself to the expression sitting in the catbird seat? For the answer to this profound question, I turned to Allison Wells of the Cornell Lab of Ornithology. Her thoughts: "Best we can figure, this may come from the fact that catbirds are good 'sentinels', so to speak. They recognize predators and are very vocal about announcing that to other birds around."
|Well, I certainly didn't mean to imply that it is good to be sitting in the seat of a mimic, since OAU is the real deal. Actually I never even thought about it as being a real bird. Good job Mike, seems you know your ornithology! Of course you're referring to Dumetella carolinensis.
"Catbird seat" is listed in my American Heritage Dictionary as follows:
catbird seat n. A position of power or prominence.
|If you would like to have a more enlightening revelation as to what "Sitting in the Catbird Seat" means Go to: http://www.randomhouse.com/wotd/index.pperl?date=20010118
If you want to see what this topic was really all about...
As gold hits new high's that haven't been seen in twenty five years, you may have asked yourself, "What's gold really worth?" Here's an interesting article for you to peruse, go to: http://www.kitco.com/ind/Hamilton/jan132006.html
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