trial – DA in CA

The Route

In late May of 2019, $10,000 worth of contraband arrived at our local prison. It came in two packages disguised to make it appear that they were sent by a company approved by the prison, when in fact they came from members of a blood click south of our local downtown. The contraband was hidden in Stax Potato Chips cannisters. It was vacuum-sealed to prevent detection by our K-9 units.

Prison packages can’t just come from anyone. They can only come from “approved vendors.” These are companies that are checked by CDCR to ensure that they will not send contraband to inmates. This prevents a grandma from sending her son a birthday cake with a file in it, for example. Each prisoner, if they are following the rules, gets a certain number of packages from these vendors each year. Prisoners can choose what items they want. They can order everything from Air Jordans to televisions.

Even though the mail system is designed to prevent contraband from entering the prison inmates still attempt to smuggle things in through the mail. They may organize a group of inmates to make this possible. Once a group of inmates has established a method of introducing contraband, they call it a “route.” The roles on the route are fairly well-established. For example, every route needs a facilitator on the outside to obtain the contraband. Routes need receiving inmates on the inside to take possession of the contraband. If you’re moving drugs, you may need a seller to distribute the drugs once their inside. The list goes on and on. Inmates working in the mail room are particularly valuable. They can identify packages with contraband and keep them away from the officers.

The $10,000 worth of contraband that arrived in 2019 was on a route. It was only a small part of the contraband that arrived into the prison on that route, and an even smaller part of the total contraband that arrived that year. But shutting down a route can do a lot of damage to the black markets that flourish in the custody environment. Black markets are a problem because of the violence that comes with them. The black market for alcohol during prohibition gave us Al Capone, for example. In prison, when you buy something on credit and can’t pay, you get an Al Capone response, or worse. When someone doesn’t pay in the black market, they get hurt or killed. That’s why routes are bad. Drugs, particularly methamphetamine-induced psychosis, are also a problem in prison, and they come in the routes.

This is an example of how the contraband was hidden within the packages. The contraband arrived in a large box. Inside the box were additional sealed containers, such as this potato chip can. Inside the can, under the chips, was another vacuum-sealed container. The vacuum-sealed container had tobacco. This was one of three cans of contraband in one of the packages. Tobacco is illegal in prison. Because of that, this would sell for roughly $2,000 on the black market.

So we filed a case on the $10,000 worth of contraband. The detectives traced the packages back to the street and identified the true sender. They found video of him sending the packages at a UPS store. They did a search warrant at his house and found stolen guns. We charged him, along with the two inmates who he addressed the packages to. It was these two inmates that presented the greatest problem for the prosecution. All we had was the mere fact that they were intended the receive the contraband. After all, they had to be in on it with that kind of money involved.

Most cases result in plea bargains. We kind of suspected that this one would too. I was surprised when both the inmates insisted on their trials. Even the civilian, who was caught dead to rights, wanted a trial. We set the case for trial in 2021 and I set up a meeting with my investigating officer to check on the case. After all, it had been two years since we filed it.

At the meeting, I expressed surprise that there were no more connections between the civilian defendants and the inmate defendants. I asked the detective to go look for something. He returned later that day with great evidence. He found recorded calls from the civilian to the inmates. In one of the calls, they discuss “hussling” a “package” “low key” to “get some money off of that.” I informed the defense.

That’s when my troubles started. The defense claimed that this was late discovery and should result in a continuance or a mistrial or something. They were mainly angry that the case against the inmates, which had looked weak the day before, had suddenly become very strong. It became clear that one of the defense attorney was advising the defendants not to settle because he believed he could beat the case. He loudly and repeatedly accused me of misconduct and sandbagging. I pointed out that the jail calls were with a third party, Global Tel Link, and not exactly sitting in my drawer for two years. I pointed out that these calls were equally available to both parties. If he had wanted them, he could have subpoenaed them. I also pointed out that his client, who is on the calls, has known about them for years, whereas I just found out about them. I felt confident that any conviction would survive an appeal.

We began the trial. As I began to roll out the evidence, I felt better and better about my chances of convicting the inmate defendants. I could see the defense attorneys becoming desperate as their defense got less and less believable. But they did not let go the griping about late discovery. They kept making outlandish claims, saying that they would have hired voice recognition experts and things like that, if only they had known about my evidence.

The judge was new: it was his third trial. He was starting to rattled by the defense claims. Judges don’t like to be overturned. They don’t like to have to retry cases. It embarrasses them. They also believe that it hurts their chances of moving to the appellate bench. All these considerations weight especially heavily on new judges. Without a history of appeals they have no sense of what is an issue and what is a defense red herring.

Unfortunately, the judge in this case lost his nerve. On the last day of trial, he offered sweetheart deals to each of the defendants if they would plead guilty. I think he did this because he believed the discovery issue would cause the case to be reversed on appeal. He was very polite about it, and I believe this judge has a bright future, even though he made the wrong call here. We let the jury go, and I spent the rest of the afternoon drinking at a Mexican restaurant with the cops.

The lesson for me: meet with the cops to review the cases way before trial, not the day before trial. The lesson for the cops: present all the evidence at filing, not some of it. And the lesson for all of you would-be judges out there: don’t lose your nerve. Trials are about truth, not evidentiary quibbles, and no one docks your pay if the Court of Appeal reverses you.

Exiled from the Gym

I used to love working out during my lunch hour. I felt like a disciplined, focused, ass-kicking professional. I would walk into the gym, in my court clothes, and everyone would recognize me. After showering, I would put my tie on in the locker room, as proud of my neckwear as I was of my bench press. And then back to work, feeling refreshed, feeling like I was “ahead” for the rest of the day. The gym was right by the courthouse, smack dab in the middle of my jurisdiction. Which is to say, it’s not in a nice area. But lunchtime was the only time that I really felt like I was getting out there in the community. The courthouse itself is a fortress (most are) and the interaction that you have in the courthouse is mostly with the defendants and their families. They are never happy to see you. Your win is their loss. At the gym, I could just fool myself into thinking that I was seeing victims, and family members, people who wanted their streets to be a little cleaner, people who were happy when I did a good job.

I was not surprised when I found out that a notorious member of a local gang had been arrested in the gym parking lot. He was selling crack. When the officers approached, they recognized him, pulled him out of the car, and discovered marijuana inside. They didn’t find crack, but when they put the defendant in their squad car, he tried to hide the crack in his own crack, if you catch my drift.

I had never done a felony drug case before. I talked it over with my wife, and with others, and their reactions surprised me. None of them seemed very upset about the crime. Most of them predicted that the jury would think that this case was waste of their time. I tried to settle the case on the basis of their doubts, but the defendant wanted his trial, and I gave it to him.

The defense lawyer continually played the race card during the trial. The arresting officers were white and the defendant was black. She accused them of framing him. Why would they do it? “Because they could,” she said. Because who cares about someone like poor old defendant. This seemed silly to me and I stuck to the facts.

I felt optimistic at the end, and when I heard the jury had a quick verdict, I was sure of success. I even had another lawyer stand in for me to take the verdict. The ritual in this situation was for him to text “Guilty!” and everyone to celebrate. But no texts came, none at all, and I started to worry. Finally, after about an hour, I was told that the jury had returned a verdict of not guilty. I was shocked. A coworker interviewed the jury afterwards. The jury foreperson said, “I think the prosecutor underestimated us.” They wanted DNA testing on the bag of drugs recovered from the defendant’s butt crack. They wanted fingerprinting. They wanted a crime lab working in shifts to analyze everything.

I can’t go back to my gym now. The defendant had plenty of time in custody as a pre-trial detainee. All he did was work out. The defendant testified that he had been arrested after working out, and based on his appearance during the trial, he never stopped. Maybe that’s all he did while he was away. The thought of being in a locker room with him is not something I’m especially comfortable with, now that I know about some other things that his gang has done. In fact, every time I have a case with someone from that gang I think of him, running into him at the gym. I know that nothing would happen, the statistics don’t lie, but it gives me pause. It’s a small dilemma for me (and I’m sure I’ll go back eventually) but it’s an interesting reminder of what it must be like to live in that community full-time. Of what it must be like to see people like my gang defendant on a daily basis. Maybe that’s the lesson I should take to the gym when I return.

Next Time, Use A Knife

I recently tried a case in which a defendant really screwed himself over by using a gun. He broke up with his girlfriend and confronted her when she brought another man to pick up her stuff from his house. The boyfriend shot several times at the man, causing him serious injury. Because he used a gun in his fit of rage, instead of using a knife, he is now facing life in prison. By contrast, if he had used a knife, his sentence would have been increased by four years: one for the knife and three for the injury. Four years versus life is a big difference.

California has a “use a gun and you’re done” law: Penal Code § 12022.53. If you use a gun during a serious felony, your sentence is extended by an additional 10 years. If you fire the gun, your sentence is extended by an additional 20 years. And if you cause great bodily injury to a person as a result of firing a gun, then your sentence is extended by 25 years to life. These extensions are in addition to your punishment to the crime itself. In fact, the punishment you face for using a gun often far exceeds the punishment for the underlying crime.

Penal Code § 12022.53 was enacted in 1997 to substantially increase the penalties for using a firearm in the commission of certain felonies. The Legislature found “that substantially longer prison sentences must be imposed on felons who use firearms in the commission of their crimes, in order to protect our citizens and deter violent crime.” The Los Angeles Times described the bill as “supported by virtually everyone outside the far left.” The author said, “With the 10–20–life provisions of [Penal Code § 12022.53], we are sending another clear message: If you use a gun to commit a crime, you’re going to jail, and you’re staying there.”

The judge may not strike this enhancement. In other words, even if the judge feels that the additional punishment is unjust, he cannot stop the additional time from being imposed. Moreover a judge cannot avoid the additional punishment by simply granting probation, as he can in other cases. Finally, the enhancement prevents defendants from receiving the same amount of jail credits that others may get: sentence credits are limited to 15% of the total term.

The limitations on the judge may not bind the prosecution, however. Penal Code § 1009 allows the prosecution to amend the information “at any stage of the proceedings.” If there is no prejudice, an amendment of the information for defect or insufficiency may be granted up to and including the close of the trial. (People v. Goolsby (2015) 62 Cal.4th 360, 367-368 [amendment upon submission of the case to the jury].) Indeed, courts have even allowed amendment after a jury verdict but before sentencing. (See People v. Valladoli (1996) 13 Cal.4th 590 [amendment to correct clerical error by adding prior convictions].) Of course, the prosecution could amend the complaint at any point during proceedings. They also have the discretion not to charge the enhancement in the first place. Enhancements like this one underline an important point: the prosecution often has more discretion to show mercy to defendants than a judge.

Some may agree with this law, and some may not. As the Roman playwright Terence says in his “The Self-Tormentor”:

Ius summum saepe summa est malitia.

Extreme law is often extreme injustice.

(Act IV, Scene 5, Line 48.)

I find the title of the play appropriate, since we are all responsible for ourselves, andthose who violate the law open themselves up to this extreme punishment. Whether a defendant actually deserves a break is another question. The Legislature, which speaks for the people, clearly intended to throw the book at gun-toting criminals. Prosecutors are part of the executive branch, and should carry out the legislature’s intent. I think that if more people knew about this law, they would be less likely to use a gun in the first place. Maybe the most “merciful” thing for both victim and defendants is to get the word out, and prevent the crime in the first place.

Meet the Truth

When you’re nice to people, they give you attempted murder cases. That’s what I found out when a more senior DA got transferred and specifically asked that a case be assigned to me. Normally, someone with my experience level would not try an attempted murder. It was her vote of confidence that let me cut the line.

The case was strong: lots of forensic evidence, incriminating statements by the Defendant prior to trial, and the weapon involved in the shooting was registered to him. The Defendant lured the his ex-girlfriend over to his house in the middle of the night by throwing her stuff out. He then shot a man that the ex-girlfriend brought to help her with the stuff.

I spent the weekend before the trial re-reviewing the medical records, which were voluminous. There’s one line in the medical records that I noticed for the first time: it said that our victim gave a statement to another police agency (a different agency than the one handling the crime). I didn’t have that report. Visions of Brady violations swirling in my head, I scrambled to locate it at the last minute. And sure enough, when my detective was able to run it down, it was extremely harmful. The victim flat-out lied to the other agency. He didn’t leave out details, he didn’t confuse things, he affirmatively made up a new story that had no relation to the facts.

I had to turn it over, of course, but I heard about it during opening, closing, and ad nauseum during cross-examination. “The People’s witnesses are liars!” again and again.

The defense was self-defense. Which meant the Defendant had to testify and provide an alternate version of what happened. His lie, however, was so poorly thought out that I was shocked. At first he seemed very smart and reasonable. He was soft-spoken. He did not let his emotions through in the courtroom. But when he got the meat of the story, the exculpatory part of the story, he just didn’t have a compelling lie.

The best lies meet the truth halfway. But the Defendant told a story that completely excused himself altogether. He didn’t admit that he intended to kill but asserted that it was justified in self-defense. Instead, he said that he never intended to actually shoot anyone. He only intended to “cover” himself and scare the victim into ducking. Then, he could make his escape.

The jury did not buy it. The grouping of shots near the victim was too close together for an accident. They discounted the Defendant’s story and convicted him. He was charged with attempted first degree murder and they convicted him on first degree attempted murder, because they thought he only quickly decided to kill the victim; he didn’t premeditate. But they found the gun allegations true. Those gun allegations enhanced the punishment by 25 years to life.

Herding Witnesses

We argued motions in the morning on the day my second felony was supposed to begin. I had two witnesses, both cops, subpoenaed to be in court at 10, to start out the case. My civilian witness was taking a bus from 300 miles away, and wouldn’t arrive until the afternoon session. But I had the two cops to fill the time while she traveled in. When we finished arguing motions (all adverse rulings), the already angry judge turned to me and asked me who my first witness was. The jury was waiting outside. I turned around to and there was no one there.

For anyone who has ever had to herd witnesses, this is the nightmare. There wasn’t a single other person in the courtroom, much less an officer. I asked the court for a moment and looked down at my phone. There were several texts. The first officer said that he was sick and couldn’t come in at all today. That’s bad, but not fatal, I would just have to scramble to put my evidence on another way. I saw that there were other text messages; that must be the other cop telling me that he is waiting outside. I’ll have to start with the other cop, but whatever, I can still make it work. I check the other text message. Sure enough, it’s the other officer. My heart is racing already, no one likes surprises, but I’m feeling confident that I know what he’s going to say. The judge is watching. The Defense counsel and the Defendant are sitting silently next to me, probably wondering what the hell is going on. I read the message: the other officer is on an arrest and can’t come in. My stomach drops.

We approach, I tell the judge the situation. Not in a calm or collected way. Like a person vomiting information in chunks with a going film of apology and self-justification. The judge, who was already mad, becomes incensed. He says, “Ok. You’re unable to proceed. I’m going to dismiss the case.” That would be extremely bad for the case: the defendant would be let go without me putting on a shred of evidence. And the Defendant has a horrible record. Moreover, I would have to explain why my scheduling problems robbed the People of California of their right to a trial. And I’m new! It’s not like I have a record of smooth success behind me.

I can sense the judge wants to protect the time of the jury, who have jobs and lives of their own, afterall. I ask him if we can open, and tell him the cops will arrive while we are opening. He tells me to call the cops and make sure that they can be there. I do. I call them on the record, with the judge sitting there watching and listening, with a horrible look of pain and worry on my face. The second officer, who was in the middle of the arrest, picks up. I tell him to stop what he is doing and come to court right now. He agrees. I tell the judge, and he brings in the jury.

The judge asks defense counsel if she is going to open. She’s not an idiot. She says, “I’m going to waive opening statement.”

I normally spend about five minutes on my opening statement. In this case, a robbery, five minutes would be a stretch. I just don’t have that much to talk about. “He came in, he used force and fear, you find him guilty.” But based on where the officer is coming from, I know that I need about 25 minutes, plus parking and elevator time. So I start my opening. And I’m dragging out it. I’m literally going through every fact I intend to elicit. I’m holding up picture after picture, saying things like, “here’s another exhibit I will introduce.”

I get to the end of everything and the officer is still not here. I sit down, defeated. Then defense counsel, miraculously, changes her mind and decides to give an opening. Deliverance! It takes about 7 minutes, as I’m frantically watching the door and bouncing my knee like a recovering drug addict. And then, somehow, she’s done and the cop is still not there.

The judge turns to me and says, “call your first witness.” I have nothing. But an idea forms in my mind. The jury is watching. I say, “your honor, can I have a 15 minute bathroom break?” I know what he’s thinking. He wants to appear reasonable in front of the jury. He says, “ten minutes.” The cop arrived on minute seven.

Inside Baseball

I’m still reading Ghettoside by Jill Leovy, with a special eye to how the prosecutors handled the case. Lead prosecutor Phil Sterling initially came to Leovy’s attention when he advocated for the Tennelle case to be handled by LAPD’s Robbery Homicide Division in a way that some considered to be arrogant. But by the time he starts his opening, he is “disciplined and exhaustively thorough, as if he were reading the table of contents of an academic treatise.” She describes his self-effacing humor as stemming from this competence. Practicing prosecutors, Leovy says, must thoroughly prepare their arguments.

On the other hand, when Stirling gets to gang expert Det. Daniel Leon, he is less impressive. Lean didn’t know that a down-pointing arrow meant “this is our turf,” something Leovy seemed to know. Leon also didn’t recognize “S.C.” as meaning “South Central.” Stirling had to tell him. On first look, it may seem like Leon is not doing a great job as a gang expert. But a prosecutor should always know the answers to the questions he asks a witness. And he should make sure the witness does as well. Stirling should have made sure that Leon knew what these gang marking meant. He should certainly have reviewed the detective’s testimony beforehand, even though an opinion witness may not be as important to the case as a percipient witness.

Stirling “pounced” on co-defendant Starks during cross-examination, and had an admirable Perry Mason moment when he obtained a hotel receipt to completely discredit Stark’s alibi. I smiled when I read that “a bunch of DAs” were in the courtroom to see it. Such a rare moment given modern discovery rules, and so effective.

Leovy described Stirling’s closing as “a tad bathetic” and said he “indulged in prosecutorial cliches. For example, he held up a gun and yelled “bam, bam, bam” to act out the killer’s motions. Leovy may not like it, but I have heard the value of this kind of acting is to take the jury out of the sterile environment of the courtroom and remind them that a murder is a terrifying, loud, and violent act. A slow-moving prosecutor, droning on from behind a podium, might not be able to do that.

Stirling is apparently a big believer in PowerPoint. “[T]he jurors had endured two weeks of remorseless PowerPoint torture at the hands of the prosecution.” Although Leovy may disagree, I believe that the use of PowerPoint, particularly to present photographic evidence, is part of Stirling’s project of bringing the crime back to life. That’s a skill I’d like to learn, and Stirling, in my opinion, is a skilled prosecutor.

Step One: Throw a Fit. Step Two: Give Up

The Defendant just gave up halfway through my sixth trial. It was a DUI with a refusal allegation. It’s a difficult misdemeanor because a lot of jurors want to have a chemical test to rely on when they are deliberating. Without a chemical test, some don’t feel comfortable convicting. The police didn’t see a lot of objective symptoms of intoxication which might make up for the lack of a chemical test. In fact, some of my witnesses disagreed on whether the Defendant smelled like alcohol. And the police didn’t observe bad driving, another factor that is normally used to argue that the Defendant was under the influence. All the Defendant was pulled over for was a speeding ticket.

In addition to the weak evidence of intoxication, the Defendant had an alibi. He claimed that he was the victim of a shooting which left a bullet in his body. This bullet cut off oxygen to his brain when he was under stress. Despite this alibi, the defense had not noticed any witnesses, such as doctors, nor did they intend to introduce any medical records. All they had were photos of lumps in someone’s body that I assume they were going to claim were bullets in the Defendant’s body. That’s it. I think the Defendant was intending to get up there any say, “Hey, I’m the real victim here.” “I was robbed back in the 90s and I was shot three times. One of the bullets has traveled to my heart. Because of that bullet, every time I get excited the bullet cuts off oxygen to my brain and I pass out.”

There were several problems with that theory, even if you don’t consider the total lack of independent evidentiary support. First, and most important, I had a report by an EMT on scene showing that defendant’s blood was properly oxygenated. In other words, his defense was a complete fabrication. Second, the Defendant didn’t even pass out, he just fell down. Third, the robbery part, and the bullets part are completely irrelevant. Fourth, again, there was no evidence of any of this other than Defendant’s self-serving testimony. And of course, if he really had this condition, should he be driving in the first place?

The case was won on motions in limine. I was able to exclude virtually every aspect of the other side’s defense. I successfully argued that his statements about the prior robbery were an irrelevant attempt to garner the sympathy of the jury. Then I pointed out the lack of medical records, and argued that Defendant should not be allowed to give his lay medical opinion as to his injuries, nor should he be allowed to repeat a doctor’s diagnosis, since this is hearsay. These motions were granted as Defense counsel threw a fit and cursed the name of the judge to anyone who will listen. I think he was putting on a show for his client. He made several comments to that effect.

This case taught me the value of discussing your cases with your coworkers: they suggested the motions that I used, even though I was more than capable of coming up with them myself. I knew it was valuable to write motions in limine, but they were so effective in this case that the Defendant just threw in the towel.

My First Trial

I just finished my first trial with a guilty verdict. During my celebratory lap around the office, another prosecutor gave me some good advice. He said that after a win most prosecutors pat themselves on the back and tell themselves what great lawyers they are. They look back on their trial as a perfect performance: no errors, no mistakes. Instead, he suggested that I think of all of the things that I had done wrong during the trial and to write them down so that I wouldn’t forget. This would also help balance what might otherwise be an extremely optimistic and congratulatory narrative developing around the trial.

First, I should have been more specific with my motions in limine. The judge took one look at my trial brief and asked me if there was anything in the motions in limine section that wasn’t “standard.” There was nothing. I could have litigated the issue of defendant’s prior convictions, for example. I could have made sure that the judge would allow me to elicit testimony about what happened after the incident so that the jury had more of a complete picture.

I could have thought of more questions for voir dire. I only had a few lines of questioning about reasonable doubt being an “abiding conviction.” I could have asked about how they use their common sense to tell if their children are lying, for example. Luckily I was able to clean up some of this on the second day.

I should have interviewed the witnesses earlier on in the trial process. Because I didn’t interview them until the day before they testified, I was totally blindsided when one of them mentioned facts that were not in the police report. I had also just made myself a witness. When I tried to amend the complaint later to add a count regarding the new facts, the judge denied the amendment as untimely.

There were certain questions that I didn’t ask on cross-examination because I had no set plan for cross-examination. That tended to work out well in some ways but led me to missing what might have been some of the most important questions.

Finally, everyone tells you to make sure your technology works, but I didn’t, and I couldn’t get my upright projector working in time for closing. Although this worked out fine because I was able to use a whiteboard, that was just pure luck. I could have fooled around with it a little bit over the lunch hour. And my failure to get it going meant that most of the time I spent working on my powerpoint was wasted.