May 6, 2008 Reasonable Doubts

MISCONDUCT - PROSECUTORIAL - DNA EVIDENCE - "PROSECUTOR'S FALLACY"
Brown v. Farwell (9th Cir. 5/5/08, 07-15592) 08 C.D.O.S. 5353
"At Petitioner Troy Brown's trial for sexual assault, the Warden and 
State's ('Respondents') deoxyribonucleic acid ('DNA') expert [Washoe 
County Sheriff's Office Crime Lab employee Renee Romero] provided 
critical testimony that was later proved to be inaccurate and 
misleading. Respondents have conceded at least twice that, absent this 
faulty DNA testimony, there was not sufficient evidence to sustain 
Troy's conviction.[Fn.om.] In light of these extraordinary 
circumstances, we agree with District Judge Philip M. Pro's 
conclusions that Troy was denied due process, and we affirm the 
district court's grant of Troy's petition for writ of habeas corpus." 
Romero's testimony was unreliable for two reasons. First, when she 
testified that the DNA showed a nearly 100% chance of defendant's 
guilt, she fell into the "prosecutor's fallacy," which occurs "when 
the prosecutor elicits testimony that confuses source probability with 
random match probability. Put another way, a prosecutor errs when he 
'presents statistical evidence to suggest that the [DNA] evidence 
indicates the likelihood of the defendant's guilt rather than the odds 
of the evidence having been found in a randomly selected 
sample.'" (United States v. Shonubi, 895 F.Supp. 460, 516 (EDNY 1995). 
Second, Romero inaccurately minimized the likelihood that defendant's 
DNA matched one of his four brothers.
Ed. Note: of course the prosecutor who put this evidence on is not 
named.

MISCONDUCT - PROSECUTORIAL - HIDING EXCULPATORY EVIDENCE
In re Miranda (Ca. Sup. Ct., 5/5/08, S058528) 08 C.D.O.S. 5360
Los Angeles prosecutors presented testimony of Joe Saucedo that 
defendant had killed another person, while all the time possessing a 
letter by an inmate (Montez) recounting Saucedo's confession that he 
had killed the person. Prosecutors also had "numerous additional 
items" pointing to Saucedo's guilt that he did not disclose to the 
defense. The prosecutors involved are Lance Ito (yes, that Lance Ito) 
now-judge Frederick Horn, and Curt Hazell (still a DA). Of the three, 
only Ito admitted to having ever sseen the Montez letter. None of the 
three had a record of having turned over the letter. The letter was 
disclosed to federal habeas counsel.
Ed. Note: okay, folks, so which of these three men is lying? The 
California Supreme Court doesn't even seem interested. It did not 
refer any of the three to the State Bar, as it is required by law to do.

WITNESSES - NO DA DUTY TO IMMUNIZE
People v. Williams (Ca. Sup. Ct., 5/5/08, S052520) 08 C.D.O.S. 5377
Confrontation right not violated by allowing prosecution witness to 
invoke self-incrimination privilege. Neither prosecutor nor court was 
obligated to offer prosecution witness immunity.

SEVERANCE - CHARGES - CROSS-ADMISSIBLE
People v. Albillar (C.A. 2nd, 5/5/08, B194358) 08 C.D.O.S. 5403
You know the defendants are going to lose when the case starts out: 
"A person who joins a criminal street gang, boasts of his membership, 
and commits crimes with fellow gang members, is in a poor posture to 
complain about evidence of gang association. A trial is a search for 
the truth and no defendant has the right to an antiseptic trial where 
the jury is deprived of a full and relevant evidentiary presentation. 
(See e.g., People v Zack (1986) 184 Cal.App.3d 409, 415). Here the 
trial court, consistent with both the law and common sense, exercised 
its discretion and allowed this evidence in a unitary trial. As we 
shall explain, despite their best efforts to present this as something 
other than a 'gang' rape, appellants have failed to do so."

MISCONDUCT - PROSECUTORIAL - DISMISSAL AS REMEDY
United States v. Chapman (9th Cir. 5/6/08, 06-10316) 08 C.D.O.S. 5415
Dismissal of indictment as penalty for prosecutor's failure to 
disclose over 650 pages of documents upheld. But defendants not 
entitled to attorneys' fees under Hyde Amendment. The discovery 
violations were repeated and the (unnamed, of course) prosecutors kept 
saying they had handed over everything. The worst offender is called 
"AUSA" in the decision. Even though the Ninth Circuit panel is clearly 
angry, "The government's tactics on appeal only reinforce our 
conclusion that it still has failed to grasp the severity of the 
prosecutorial misconduct involved here, as well as the importance of 
its constitutionally imposed discovery obligations," it steadfastly 
keeps their names secret.
Ed. Note: Why? Why keep the names secret?

SEARCH & SEIZURE - EMERGENCY AID
People v. Gemmill (C.A. 3rd, 5/6/08, C055464) 08 C.D.O.S. 5437
Under "emergency aid" exception, officers may enter a home to render 
emergency assistance. (Brigham City v. Stuart (2006) 547 U.S. ___, 164 
L.Ed.2d 650, 657-659.) Third District holds that officers may conduct 
search less intrusive than physical entry when they have objectively 
reasonable basis to suspect some inside might be seriously injured. 
Police had found an unattended child wandering in the street, and 
while trying to get people to answer door, they saw baby playing with 
plastic bag and nonresponsive adult. They entered and "While tending 
to the infant and the adult and looking for other unattended children, 
the police officers discovered over 550 grams of marijuana and 
methamphetamine paraphernalia, within a child's reach."