San Jose Criminal Defense Lawyer Blog

It is nearly universally understood that before police can extract a confession, the criminal suspect has to be informed of his constitutional rights, particularly the right to a lawyer and to remain silent. Less known is that "Miranda Rights" only apply to custodial interrogations where the suspect is not free to leave. However, the courts have routinely held since the Miranda decision that a criminal suspect must be informed of his rights to counsel, to remain silent and other constitutional protections before an interrogation and that such warnings are an "absolute prerequisite" to any such custodial questioning. Miranda v. Arizona (1966) 384 US 436. Also see Florida v. Powell (2010) 559 US 50.

However, over the last few years the courts have began chipping away at Miranda and upholding convictions based in whole or in part on confessions made in the absence of the Miranda warning. See this blog August 15, 2012.

The Ninth Circuit has just handed down a decision that seems in conflict with the Supreme Court ruling in Miranda. At issue before the court was a criminal conviction in California state court for certain violent crimes including robbery and murder. Before her arrest, Stacey Dyer's apartment had been searched in connection with a kidnapping and murder investigation. Dyer was placed in a police squad car while the police searched her apartment pursuant to a valid search warrant. After being locked in the police car for more than an hour Dyer "agreed" to speak to the police at the local station. She was placed in a small room about 15 feet by 15 feet, with a table and chairs and was interviewed for almost four hours sometime after midnight. After the first hour and a half, she denied the allegations made by the police that she was involved in a robbery and kidnapping. She finally relented and admitted to participating in the crimes that did lead to a murder.

Dyer was never advised of her Miranda rights before or during the questioning or before she made the confession. Before trial Dyer, through her attorney asked to have her confession suppressed as it was made in violation of Miranda. The trial court denied the motion and a jury eventually convicted Dyer based in large part on her confession.

The Ninth Circuit has upheld the conviction holding that Dyer was not in custody at the time of her confession. Specifically, in what is nebulous reasoning the court said "We think that a fair-minded jurist could, on this record, find that Dyer was not in custody, because many presumably fair-minded jurists have indeed so found [on similar] facts," including that Dyer came to the station voluntarily, was allowed bathroom breaks and was never told she was not free to leave. Dyer v. Hornbeck (2013) 2013 US App Lexis 2557.

In the opinion of this San Jose criminal defense attorney, the Ninth Circuit's holding violates the tenets of Miranda established decades ago. Miranda specifically held: ""the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination," including an admonishment of her rights. Miranda at 444.

Holding that Dyer was not in custody during the four hour interrogation is a hard notion to grasp. She was told to sit in a squad car for an hour, and then brought to a police station, led to a small room and was questioned for nearly four hours. Under the totality of the circumstances would a reasonable person in this situation feel free to get up and leave? The answer is a resounding no. Not being told you are not free to go does not mean you feel free to go. Allowing bathroom breaks is a biological necessity. Lastly, agreeing to be transferred to the police station after being detained for an hour in a police car may not be so voluntary as the court assumes.

This was a four hour confrontation between police investigators and a citizen, protected under the law. It goes without saying that Miranda v. Arizona and it progeny demand a criminal suspect in such a situation be afforded her rights before any statements are given.

"You have a right to remain silent. Anything you say can be used against you in a court of law. You have the right to speak to an attorney, and to have an attorney present during any questioning. If you cannot afford a lawyer, one will be provided for you at government expense."

Law enforcement officers are required to inform people of their rights to remain silent and to have an attorney present during a custodial interrogation. However, here in California the state Supreme Court has yet again chipped away at such Miranda Rights. In the case of People v. Sauceda-Contreras a criminal suspect was brought into police custody for questioning. English was not his first language. When asked in English whether he wanted a lawyer, the man asked to have one present. However, he did so in very broken English. Specifically he said: "If you can bring me a lawyer, that way I[,] I with who... that way I can tell you everything that I know and everything that I need to tell you and someone to represent me."

Under Miranda jurisprudence the police should have immediately ceased all questioning and allowed the suspect to retain counsel or have counsel appointed. See Miranda v. Arizona (1966) 384 U.S. 436.

However, the police pushed on until the suspect said he was willing to speak to law enforcement without the assistance of a lawyer. The Supreme Court held that the suspect's answer was sufficiently "ambiguous" to allow officers to continue to press him about his desire to get a lawyer. It is true that when a suspect is about to be interrogated and makes an ambiguous statement that could be construed as an invocation of his Miranda Rights, the police may ask a follow-up clarification. See People v. Farnam (2002) 28 Cal.4th 107.

Usually this applies when a suspect's response is clearly equivocal or ambivalent on the issue of seeking counsel. However, Sauceda-Contreras' response, although in broken English, does not appear equivocal or ambiguous. He did say "bring me a lawyer," and "someone to represent me," in the context of answering questions - "tell you everything I know." This response should have immediately cut off any further questioning until counsel was made available to the suspect.

However, I would like to make one further argument not addressed by the court: the police should have obtained a Spanish language interpreter before asking the suspect any questions regarding his Miranda rights. That would have prevented any alleged confusion as to the suspect's understanding, response and requests. That would have prevented this issue from even arising...

Continue reading "Miranda Rights In California Criminal Cases Further Chipped Away At" »

San Francisco Mayor Ed Lee has announced that his city will no longer use a policy of "stop-and-frisk" in an attempt to curb gun violence. Several months ago, following the lead of other cities such as New York, Lee announced that police would stop and pat down any person that they thought looked "suspicious." The response from San Francisco to San Jose was an avalanche of criticism on the grounds that such a policy was targeted at minorities, not to mention an affront to the protections provided by the Federal and State constitutions.

The courts have held that an investigatory stop may be justified where there is some "objective manifestation" that the person about to be stopped is engaged in criminal activity. (See United States v. Thomas (1988) 863 F.2d 622). Really, such a stop of a person must be based on a totality of the circumstances, where there is a particularized and objective basis for believing that criminal activity is afoot.

However, a "lawful" frisk does not necessarily follow a stop of a person, even where the cop has reasonable belief to detain. The stop and the frisk are two entirely separate things, each requiring separate elements or factors before the police can lawfully act. For a police officer to frisk a person he must believe that that person represents an immediate threat to him or the community. This is both an objective and subjective analysis. In other words, the police officer must reasonably believe that the detained person represents a real risk and so would a "reasonable person" in similar circumstances. For the seminal case on stop-and-frisk, see Terry v. Ohio (1968) 392 US 1.

Ed Lee's plan would scrap 200 years of search and seizure precedent and violate the protections afforded to every citizen by the Fourth Amendment to the U.S. Constitution. Under the policy officers could stop and frisk anyone at anytime if they merely determine that the person is "suspicious." Of course "suspicious" is a loaded word; and even if the police have cause to believe that the person under their surveillance might be guilty of something or other, that is simply not enough to violate the privacy of that person, unless the police have real and substantial fears that the person may have a weapon.

In my perspective as a a criminal defense lawyer it seems unlikely that the San Jose police or city government will follow a similar path after the public outcry in San Francisco. Nevertheless, the Fourth Amendment continues to be at risk for various political and social policy reasons...

Source: Associated Press Article, "SF Mayor Ends Stop and Frisk Consideration," by Fenit Nirappil, dated August 7, 2012.

It is not uncommon for police officers to be charged with various crimes, including driving under the influence (DUI), domestic violence, even sex crimes. Here in San Jose, we have had a local police officer recently get sentenced for statutory rape of two young boys and of course there is the now infamous Meserle case in Oakland, where BART police officer Johannes Meserle was convicted of manslaughter in the shooting death of Oscar Grant. (See this blog, dated November 21, 2011).

Just this past Friday, two sheriff deputies in Sacramento were charged with various but serious gun charges, including the illegal sale and trafficking of weapons, engaging in a firearms business without a license and conspiracy. Deputies Ryan McGowan and Thomas Lu are the deputies named in the complaint. Also charged is a firearms dealer involved in the transactions.

In California, certain law enforcement personnel can purchase weapons that are otherwise restricted to the general public. However, such sales must be done through a federally licensed gun dealer. It is alleged that the deputies served as "straw men" who purchased such weapons, including high powered rifles, and then turned around and sold the weapons to "unqualified purchasers" at a tall profit. It is illegal for police officers to sell such restricted weapons to non-police personnel.

The AP reports that some of these illegal weapons ended up in the hands of criminals, including a convicted drug dealer. Two of the weapons were later converted into even more dangerous assault weapons. It is unclear whether any of the weapons ended up in the South Bay or if the anyone is being charged in San Jose or Santa Clara County.
The evidence discovered as a part of this investigation include ammunition used in M-16 and M-4 rifles, and Uzi-like semi-automatic handguns. These are all illegal to the general public.

The investigation into these crimes was a joint District Attorney and U.S. Attorney operation. So far the men are being charged in federal court; however, the county court system can also prosecute under state law. It is my opinion as a criminal defense attorney that these men are looking at a maximum exposure of ten years in prison.

The National Firearms Act makes it unlawful to own, possess or use a gun that is not federally registered and further makes the possession of certain firearms, including machine guns, Uzis and some high powered rifles illegal to non-police or military personnel. For a history of the National Firearms Act click here.
Source: Associated Press, Don Thompson, dated June 1, 2012. To read the article click here.

Late Thursday evening, an online article was posted by Bay Area News Group reporter Doug Oakley. In the article Mr. Oakley wrote that Berkeley Police Chief Michael Meehan had apologized to a group of concerned citizens who alleged that the city police did not immediately respond to an emergency call that resulted in the beating death of Peter Cukor. Oakley attended that meeting and reported it firsthand.

However, that very night, after reading the article, Chief Meehan sent an armed Sergeant to Oakley's home, insisting that Oakley got his facts wrong. At about 12:45 a.m. an armed police officer knocked on Mr. Oakley's door, not to investigate a crime, but to demand that the reporter change the story to reflect what Chief Meehan deemed to be the truth. Meehan claimed that he apologized not for the slow response to the emergency call, but for being slow to inform the public about the tragic beating -murder.

The historical imagery of sending police to a reporter's home, late at night, can go un-said for now. However, this is not just police harassment, or issuing petty citations to otherwise innocent people; rather this is a direct assault on the First Amendment and quite frankly, a show of brash force meant to intimidate and control.

Meehan has since apologized, saying it was a lapse in judgment. Certainly it was a brazen lapse in judgment. The City Attorney is investigating the matter and the City Council will also take the incident under review. To read the Bay Area News Group article click here.

Source: Bay Area News Group

The San Jose Mercury News has reported that police and fire officers are some of the top income earners in Palo Alto. Lt Ken Densen, who recently retired, made $407, 908 last year. About half of that was a cash payout from unused vacation and sick leave. Nevertheless, his base bay as a police officer was $195, 169. It's good to be a police officer.

First runner-up was Captain Jason Amdur, of the Palo Alto Fire Department, who made a not so bad $322, 734. It's good to be a firefighter. Second runner up was Douglas Keith, a city police management specialist. What is a police management specialist, anyway? Well, it is good to be one. In fact, according to the Mercury, among the 100 top income and wage earners working in the city 77 are employed by the Palo Alto Police and Fire Departments.

It goes to say that these city police officers also retire with lavish tax payer funded pensions. It is also no wonder that retirements with the fire department have suddenly increased, as the new contract for next year will require employees to pay 9% in their CalPERS contribution. A similar situation is likely to happen with the police.

Of course this is a county-wide problem: millions of dollars are doled out in vacation and overtime, increasing salaries disproportionate to the private sector, double-dipping into the pension system to name a few.

I wonder how much the city dog catcher makes? I am sure it's good to be one!

To read more from the Mercury News article click here.

Don't expect a stiff warning the next time you take your dog to the park. Don't simply believe that walking your nine-year old golden retriever won't get you into trouble with the police. At least not in Santa Clara.This is exactly what happened to a Santa Clara resident who was cited for three misdemeanor violations this past Sunday afternoon. The charges? Walking his elderly golden retriever off-leash, walking his dog off leash through a vacant school yard and not being able to show proof of license, even though the dog's tags were validly updated showing registration and license.

To make matter even more frustrating for the dog walker, he was in fact merely babysitting the aged pet for the weekend.

One has to question the explosion of little laws that make life complicated and confusing these days. Young children have their lemonade stands closed down by police because the kids don't have a business license and haven't applied for a sales tax certificate. Sorry Susy, you forgot to get your occupational license and commercial use permit. Off to Juvie with ya!

In some areas it's now a crime to just give away (not even sell) homemade goods such as pies, cookies and even coffee! I recently read that an owner of a bed and breakfast, here in California, was ordered by officials not to provide his daily basket of donuts and freshly brewed coffee. Actually, it is a crime in California to provide food and water to customers and clients if the business kitchen doesn't meet a myriad of regulations and standards, including licenses and permits. Sorry Mr Inn-Keeper, you forgot to get an environmental impact survey. Off to jail!

The days of taking out old Spot for a run are long over. Instead we have a government making a crime of all the simple, enjoyable things in life.

Former Bay Area BART cop Johannes Mehserle is the subject of a civil case of assault dating back to 2008, the San Jose Mercury News reports. Mehserle was convicted of manslaughter for the shooting death of Oscar Grant in January of 2009 . That case generated nationwide reporting, not to mention widespread protests in what community activists claimed was a racially charged murder.
However, before the shooting death of Oscar Grant, a civil suit was filed in San Francisco against Mehserle and four other Bay Area BART police officers in 2008. The Plaintiff claimed that the officers attacked him after he made some disparaging remarks against BART cops. Mehserle is specifically alleged to have tackled the plaintiff in response to the plaintiff's comments.

Mehserle and the other officers have claimed that their actions were in response to threats the plaintiff made to Mehserle. He was in fact arrested for making criminal threats and further charged by the police officers of resisting arrest. The District Attorney's Office dismissed the charges against the plaintiff more than two years ago.

The civil trial was put on hold pending Mehserle's criminal trial in the shooting death of Oscar Grant. The standard that must be proved in a civil trial for battery is very similar to a criminal charge. It must be shown that the defendant (Mehserle and the other BART officers) touched the plaintiff with the intent to harm or offend him, which was not consented to and did cause harm and that such harm would have offended a reasonable person in the same situation.

Mehserle and other named Bay Area officers will likely defend on the grounds that they were making an arrest of the plaintiff and that they used reasonable force in detaining him. Even if the officer is mistaken, an arrestee has a duty not to use force to resist the officer unless that officer is using unreasonable force. In determining what is reasonable force, the jury must determine whether the amount of force used against the plaintiff would have appeared reasonable to a reasonable officer in the same or similar circumstances. What is reasonable depends on the nature and seriousness of the alleged crime and whether the arrestee reasonably appeared to be a danger to the public or pose an immediate threat.

According to the Mercury News, the trial is set to begin sometime after Thanksgiving in the Northern District of California in San Francisco.

Continue reading "Bay Area BART Cop Now Faces Civil Trial" »

Governor Jerry Brown vetoed legislation last week that would require police to obtain a warrant before searching the personal cell phone of someone just arrested. The Legislature was responding to a recent California Supreme Court case that ruled police across California, including here in Santa Clara County, may search an arrestee's cell phone (including text messages, emails, photos, recent calls, personal records, bank statements, well, the list goes on) if the search is "incident to the arrest."
The idea of searching a suspect incident to his or her arrest has a long constitutional history. This idea has been expanded by the courts through time, however, more recently the U.S. Supreme Court in the case of People v. Gant, held that such a search must be literally within the scope of the arrestees reach. In other words, to ensure the safety of the arresting officer, and to prevent the loss of evidence, it has been held reasonable for the arresting officer to conduct a prompt, warrantless search of the arrestee's person and the area within his or her immediate control.

This past January, the California Supreme Court in the matter of People v. Diaz, once again has expanded on this idea. Specifically the court declared: "The loss of privacy upon arrest extends beyond the arrestee's body to include personal property immediately associated with the person of the arrestee at the time of arrest. This loss of privacy entitles police not only to seize anything of importance they find on the arrestee's body," but also includes cell phones.

Somehow the court believes it justified to search an arrestee's cell phone 90 minutes after the arrest was made. That is exactly what happened in the Diaz case. Mr. Diaz was involved in a sting operation regarding the sale of illicit narcotics. Diaz was arrested and transported to the Sheriff's Station for booking. An hour and a half later police searched the contents of his cell phone.

It is difficult to see how this search was incident to the arrest, or how the cell phone was still within the area of the arrestee's immediate control. It is painfully obvious that the search was far too removed in time and space to qualify as a search incident to an arrest. The phone had been in exclusive police custody for 90 minutes. It is settled that the area within an arrestee's immediate control means the area from within which the arrestee might gain possession of a weapon or destructible evidence. That being the case, the cell phone ceased to be in Mr. Diaz' immediate control once he was taken into custody and police took possession of the phone. It was quite easy for the police to obtain a search warrant before examining the content of the phone.

Unfortunately the U.S. Supreme Court refused to take the case despite the conflict with Gant. Governor Brown should reconsider his stance and stand up for the Fourth Amendment's protections.

An appellate panel of the Sixth District Appeals court has ruled that a former rape suspect may proceed with his civil suit against the San Jose Police Department, the Mercury News reports. Back in 2008 Michael Kerkeles was accused of raping a mentally disabled woman in March of 2005. As a part of the investigation, Officer Christian of the San Jose Police Department used a fake DNA report showing that Kerkeles semen was collected from the scene of the crime. This was used (unsuccessfully) to illicit a confession from the suspect.

The practice of falsifying police report sand medical documents is not illegal in the investigative stage of a criminal matter. However, the false report in this case was used against Mr. Kerkeles in the prosecution of his criminal matter. At the preliminary hearing, the deputy district attorney assigned to the case called Officer Christian to the stand. He testified as to the authenticity of the crime lab report and that it accurately reflected DNA evidence collected at the crime scene. The crime lab report was the same used to illicit a confession and was completely fabricated.

During trial Mr. Kerkeles' attorneys learned that the report was a fake and as a result the District Attorney drop the charges.

Kerkeles filed suit against the San Jose Police alleging, among others, fraud, wrongful arrest, prosecution and false imprisonment. The law suit was delayed by a Superior Court judge who accepted Officer Christian's later testimony that he forgot the DNA report was falsified. The Appellate Court disagreed and said that both Officer Christian and the District Attorney knew or should have known that the report was a fake.

The San Jose Police Department has since prohibited its investigating officers from using fake reports as a part of their criminal investigations.

Continue reading "San Jose Police Sued for Fake DNA Report" »

Law Enforcement agencies in the East Bay have been rocked by a series of scandals involving allegations of threatening witnesses, making false arrests, selling evidence among other claims. However, the Mercury News is reporting that one officer may have colluded to set up one man's recent DUI arrest and conviction.

David Dutcher, a Bay Area resident was arrested and convicted of driving under the influence in 2008. His previous suspicions that he was "set-up" may now have been confirmed and those suspicions involve a conspiracy between his former wife, a too good to be true dinner-date and a now disgraced private investigator and former East Bay police officer.

Dutcher claims that his ex-wife set him up with a flirtatious dinner-date who downed Dutcher with alcohol and promises of an amorous evening before coaxing him into his car. He was soon stopped by a police officer and arrested for having a blood alcohol equivalent of .12%.

It was only after his conviction did Dutcher realize he was being spied on that evening by former PI Christopher Butler. Butler is currently at the center of a grand jury investigation for other previous DUI setups. Dutcher now contends that his ex-wife hired Butler (and his amorous date) in an orchestrated effort to smear his reputation during a child custody battle. Butler has admitted that he tipped off the police officer who arrested Dutcher, but denies any conspiracy. The ex-wife has admitted hiring Butler, but only to make sure their mutual children were not being driven by Dutcher. Dutcher's date is being described as a Las Vegas showgirl and security specialist who has previously worked on sting operations.

Dutcher is now petitioning the court to withdraw his previous plea of guilty. Penal Code section 1018 allows a person to withdraw a plea of guilty and substitute it with a plea of not guilty if good cause can be shown that the plea was not made knowingly and voluntarily and that the defendant did not fully understand all of his or her rights at the time of the guilty plea. In reality, the defendant must show mistake, ignorance, fraud, distress or some other factor that overcame the exercise of free judgment.

Although, Dutcher is a victim (one of several) there is no evidence that he did not understand his rights at the time of his plea and the following consequences. He has admitted to drinking and the subsequent driving. There is nothing to indicate that his guilty plea was anything but knowing and voluntary. Even if there was enough to retract his guilty plea, the case would not be thrown out. He would be able to re-fight the matter with the hope of getting a better deal.

However, Dutcher's case should be dismissed in the interests of justice. The surrounding circumstances have tainted the matter and the participants lack any credibility. Three other and similar cases have been thrown out. It is only fair to dismiss Dutcher's DUI.

Johannes Mehserle, the former BART (Bay Area Rapid Transit) officer was released from custody on Sunday after serving 11 months of a two year prison term, the Mercury News has reported. Mehserle was convicted this past July for involuntary manslaughter in the shooting death of 22-year old Oakland resident Oscar Grant. The tragedy sparked nationwide controversy in certain minority communities who have claimed prejudicial treatment at the hands of local law enforcement.

Mehserle's criminal case was moved out of the Bay Area and to Los Angeles for fear that the local jury pool was contaminated by the media coverage. Charged with murder, Mehserle's defense was one of mistake: he thought he reached for his stun gun and not his pistol. A smart phone camera recording the event shows Mehserle reaching to side, pulling out his .44 caliber gun and shooting Grant at point-blank range. The jury refused to convict on the murder charge, but came to a guilty verdict on involuntary manslaughter.

Mehserle's release was relatively peaceful, with some protestors attending to mark the occasion.

However, Mehserle's release once again raises the issue of distrust that many minority groups have for Bay Area and San Jose police. Here in San Jose there has been a long going feud of impounding vehicles for traffic violations where a driver is unlicensed. Latino groups argue that many of these drivers are undocumented and thus the policy singles them out for harsher treatment. The policy has, however since been dropped.

In 2010 the Mercury reported over 300 cases of abuse, most of which was targeted against minority groups. A black church reported that 35 percent of its congregation recount being stopped by police for no reason. In 2007 the police department released a inner-departmental memo which showed that police have used greater force on black and Latino detainees.

However, the San Jose Police have made great lengths to curb the unequal treatment such has setting up clear guidelines, stricter enforcement and stiffer penalties.

Continue reading "Bay Area Police Officer Released From Prison" »

In an interview with the local NBC news affiliate, newly elected District Attorney Jeff Rosen said that investigating and shutting down cannabis dispensaries will no longer be a top priority for his office. This announcement comes after an early revelation that Mr. Rosen has ordered one of his deputies to research the gray and confusing area of California marijuana laws, particularly the law on dispensaries. The underlying issue is whether cannabis dispensaries can exchange cannabis for cash as they are defined as non-profit associations.

In 1996 the people of California voted for Proposition 215, otherwise known as the Compassionate Use Law. Prop 215 allows patients suffering from cancer, AIDS, chronic migraines and other ailments, the right to buy, grow and possess marijuana for medical treatment, so long as they have a valid prescription. As the law stands a person with a valid medical card may grow, buy and possess as much cannabis as needed to treat the illness, so long as it is only for personal use.

Unfortunately the language of Prop 215 is vague and sometimes ambiguous. The courts have attempted, with a modicum of success, to clarify the gray areas. Cannabis clubs have come under particular scrutiny because they exchange marijuana for cash. Under the law such dispensaries must do business without making a profit. Critics of the dispensaries argue that accepting money violates the non-profit requirement. Supporters of cannabis clubs argue that the money received goes to operating costs, maintenance and the like, much like a charity or any other non-profit.

Law enforcement came under fire last year after a series of cannabis raids resulted in the arrest of dozens of people and forfeiture of club assets. Some raise concerns that legitimate cannabis volunteers are being prosecuted and cannabis assets seized and not returned. The accusation is that law enforcement have an interest in raiding the clubs because portions of the seized assets are distributed to the various police agencies. Some of these agencies have vowed to continue investigating the local cannabis dispensaries despite the District Attorney's more reflective approach.

Continue reading "Santa Clara to Ease -Up on Cannabis Dispensaries" »

San Jose Mayor Chuck Reed formed a commission to investigate police behavior after hundreds of citizen complaints regarding police conduct, particularly over the past two years. Many of these complaints report that police harass, harry and sometimes resort to violence over non-violent, petty crimes and infractions. The commission studied 180 different incidents over the past year and came to a conclusion: there are no "rogue" officers or any pattern of serious police abuse.

Not surprisingly, this report conflicts with the Mercury New investigation of over 321 cases where abuse was documented and often by the same officers. The Mercury reminds us of the case of Phuoung Ho, a college student, who was tasered while handcuffed. That infamous case was caught on a cell phone video, which can be seen on this blog.

I have been blogging about police for some time. We should remember the police officer who "faked" an arrest of a 15 year old boy, when the officer learned the boy had a sexual relationship with his step-daughter. What about the report from several Christian congregations that says 35 percent of its congregation have been stopped by police for no cause. And then the two separate fatal shootings of two Vietnamese men, who should have been detained, rather than killed.

In 2007 the San Jose Police release an inner-departmental memo that showed police used greater force on blacks and latinos. The department has ceased releasing such documents.

San Jose does have a problem with police abuse, whether it is using violence when not necessary, or arresting people on that catch-all charge, drunk in public. The police do protect us, but they cannot be allowed to violate constitutional rights and guarantees.

Each attorney at trial is allowed a certain number of "peremptory challenges" to dismiss potential jurors from hearing the trial. Other dismissal can be for "cause" if each side believes the potential juror unfit from sitting in the jury box.

However, race, gender, national origin among others cannot be used as factors when dismissing a juror, whether it be a peremptory challenge or for cause. The court system will not allow trial attorneys to manipulate the legal system by excusing someone merely because he or she is the same race as the defendant or victim or when race plays some other role at trial.

In 2008, Santa Clara County prosecutor Alison Filo did just that, so says the 6th District Court of Appeal. In 2008 defendant Khoa Khac Long was being prosecuted for rape and theft of a prostitute. Deputy District Attorney Filo excused three Vietnamese jurors claiming it was based on factors other than race. In fact she gave Judge Gilbert T. Brown three different excuses for each juror:

1.The first juror did not speak English well enough to understand the details of the case. Never-mind that the court offers Vietnamese language interpreters for just these instances.

2.The juror's sister was prosecuted for fraud in the past, which would prejudice the juror's view of the legal system. Of course this is purely speculative at best

3.For the third juror, Filo said: "I don't feel comfortable with his body language." This juror even said things that were favorable to prosecution!

Judge Brown excepted these explanations and after a jury was selected and trial concluded, Khoa Khac Long was found guilty of the charges. She is currently serving a 14-year prison term, but now may get a new trial based on the appellate court's ruling.

Continue reading "San Jose Judge Allowed Race to Improperly Dismiss a Juror" »