The LA Times Editorial today about the McDavid case should be the final straw for Sacramento federal criminal judge MC England to hold an Order T Show Cause Hearing about what exactly happened in the case where federal criminal defense attorney Mark Reichel was denied the evidence in a trial in 2007. It should be.
Editorial found here.
It should go without saying that cheating criminal prosecutors who lie or hide evidence to bolster their cases, and cowardly state judges who cover for them, should be identified and punished. It should go without saying — but we say it in light of last month’s extraordinary remarks from a panel of U.S. 9th Circuit Court of Appeals judges at a hearing for convicted murderer Johnny Baca. A lower court had determined that a Riverside County prosecutor lied on the witness stand to back up the lies of a jailhouse informant, but the conviction was repeatedly upheld anyway until it got to the federal appeals panel on a habeas corpus petition.
Judges Alex Kozinski, Kim Wardlaw and William Fletcher lit into the state deputy attorney general who was in front of them to defend the convictions, and a video of the exchange went viral. It sparked news stories and spirited exchanges on legal blogs about what Kozinski had previously called an “epidemic” of prosecutorial misconduct and assertions that too many California state trial judges are unwilling to do anything about it.
But lives are also at stake in the criminal courtroom. A sentence of 10 years or 20 years or even more — or of death — should not be rendered without absolute assurance that the trials were fair and that the prosecutors were honest. An argument could be made that prosecutorial misconduct is far more egregious and unforgivable than a police officer’s deadly error, because police officers must react in an instant to a potentially deadly threat to themselves or the public. A prosecutor’s misdeed comes with ample time to reflect.
Keep in mind that criminal prosecutors have duties that defense lawyers don’t. The prosecutor’s goal is not, or rather should not be, merely to win, but to ensure that proceedings are fair and verdicts are just. Prosecutors must disclose any evidence that could tend to undermine their own cases. They may not — again, it should go without saying — lie, encourage others to lie, or present witnesses they know or suspect to be lying.
California trial judges and appellate justices who encounter such misconduct have to determine whether it was so egregious — and so material to the conviction — that the verdict must be reversed. But then what?
In the hearing on Baca’s case, Kozinski complained that state prosecutors will keep committing misconduct “because they have state judges who are willing to look the other way.” Wardlaw noted that California state judges “are elected judges. They are not going to be reversing these things.”
The legal community has latched on to those comments and is involved in a debate over whether the essential enabling factor of prosecutorial misconduct is the fact that, unlike their federal counterparts, who are appointed for life, California judges must face the electorate. The argument goes that no judge wants to overturn a conviction or nail a prosecutor for fear of being branded soft on crime at election time.
But before becoming comfortable with the assertion that the problem is state judges and elections, let’s recall that Kozinski’s remark about an “epidemic” of misconduct or error came not in the Baca case but in a 2013 dissent — in a federal case.
If violations of the prosector’s duty to turn over potentially exculpatory evidence, as required under the 1963 case of Brady vs. Maryland, are indeed “epidemic,” it appears to be a disease that can spring up in any courtroom in which prosecutors believe they will be rewarded for convictions and judges, whether elected or with lifetime appointments, believe there is little point in reporting cheaters.
The 9th Circuit panel’s outrage at the Riverside County prosecutors serves as a reminder of this serious problem. It is incumbent upon state and federal judges and prosecutors, the state bar and others involved in the justice system to acknowledge it, and to present a solution.
Hopefully, the new DNA evidence in this criminal case will help release this young man.
My interview explaining it is here.
It’s been almost two years since a terrible murder scene played-out in Valley Springs, and 8-year-old Leila Fowler lost her life.
It’s been almost two years since her older brother Isaiah Fowler was charged with that murder and arrested.
He’s just 14-years-old. So, much of his 12th year, and all of his 13th, were spent either in custody or, when he’s in court, in shackles.
His defense attorneys are confident that will end tomorrow.
“He is not the murderer. He’s a 12-year-old boy who, when law enforcement got there, was almost completely clean of any evidence of a crime scene, which is beyond impossible. A 12-year-old can’t clean up a crime scene,” defense attorney Mark Reichel said.
And this crime scene was particularly gory. Leila was stabbed more than 20 times with a knife that punctured both her heart and lungs.
But it’s not just the absence of blood on Isaiah that demonstrates his innocence according to his attorneys. They say it’s the presence of the bodily fluids of another person – a man.
It’s DNA found during testing, ordered by the defense this January, on a strand of Leila’s own hair, retrieved from under her clothes, from the cleft of her buttocks.
“Now you have scientific evidence that shows sometime, recently, prior to her demise, there was a male adult very close to her – close enough to deposit significant DNA,” Reichel said.
There was no evidence of sexual assault on Leila’s body when she was killed.
I asked Reichel what Isaiah’s reaction might be Friday if he’s released on bail.
“Words probably would fall far short of describing his emotions and what he’s thinking,” he said.
We contacted the Calaveras County District Attorney’s Office about this story. They told us they would not comment, because it is a case involving a minor.
As of now, the 2nd degree murder trial of Isaiah Fowler is still on the court calendar for mid-May.
If not Isiah, then who?
“Everybody wants an answer. I wish I could give everyone an answer. But we can’t give an answer, other than to say it’s not the boy you’re holding in custody,” Reichel ssaid.
For nearly two weeks after the brutal murder of Leila Fowler, the Calaveras County Sheriff lead a manhunt looking for her killer. It would end with arrest of her then 12-year-old brother, the boy who was babysitting Leila at the time of her death. The boy who provided a description of the killer.
Now his defense attorneys are saying the key to their case was not hiding in the rolling hills of Calaveras County, but with a single strand of Leila’s hair and the DNA they found on it.
“It’s a complete profile of a male, and it doesn’t match anybody associated with the Fowler family, or those that had visited recently or been in the neighborhood,” Reichel said.
Reichel says the Calaveras County Prosecutor now is running that DNA sample through law enforcement data bases, looking for a match.
The science says there is some possibility that the male it describes is a relative of Leila and Isiah’s father, Barney Fowler.
Reichel says there is a killer still out there, and just as it was in days right after Leila was killed, it’s the job of law enforcement to find him.
“I know they were beating the bush and you were there when they were doing it,” he told FOX40. “But if in your heart and your mind, you’re certain you’re not going to find anything, then you’re not doing the job right, and you can overlook things.”
Sacramento criminal defense attorneys Mark Reichel and Steve Plesser are committed to enforcing our clients rights when charged with a crime. ABC News interviewed Mark about police spying. Here is the link and the story.
Mark Reichel interviewed by clicking here.
Big Win For Sacramento medical Marijuana Criminal Defense Attorneys Like Mark Reichel and Steve Plesser!!!
BIG BIG WIN TODAY!!!!!
Sacramento California medical marijuana state and federal criminal defense attorneys Mark Reichel and Steve Plesser are thrilled about a new California ruling. The California Supreme Court has now spoken very clearly about the legality under California state law of medical marijuana storefront dispensaries.
Specifically, today, the California Supreme Court refused to order de- publishing and refused to review a published appellate court ruling from a few years back which taught all lower courts that there is a defense against state prosecutions that the defendant was following California medical marijuana law. That case, People v. Jovan Jackson, held as follows:
“We reverse Jackson’s conviction. In opposing the People’s motion, Jackson’s burden was not very great. Jackson was only required to produce evidence which would create a reasonable doubt as to whether the defense provided by the MMPA had been established. The defense the MMPA provides to patients who participate in collectively or cooperatively cultivating marijuana requires that a defendant show that members of the collective or cooperative: (1) are qualified patients who have been prescribed marijuana for medicinal purposes, (2) collectively associate to cultivate marijuana, and (3) are not engaged in a profit-making enterprise. As we interpret the MMPA, the collective or cooperative association required by the act need not include active participation by all members in the cultivation process but may be limited to financial support by way of marijuana purchases from the organization. Thus, contrary to the trial court’s ruling, the large membership of Jackson’s collective, very few of whom participated in the actual cultivation process, did not, as a matter of law, prevent Jackson from presenting an MMPA defense.
However, we also recognize that in determining whether a MMPA defense has been established, a trier of fact must consider whether the organization operates as a for profit enterprise or is a nonprofit enterprise operated for the benefit of its members. In resolving that question, an organization’s large membership and governance processes, if any, are relevant. As we explain, where, as here, a collective has a large membership, the overwhelming number of whom do not, in any fashion, participate in the operation or governance of the collective and there is evidence of a high volume of purchases by the members, a trier of fact could reasonably conclude that, notwithstanding Jackson’s testimony to the contrary, the organization is a profit-making enterprise which distributes marijuana to customers rather than to members of a nonprofit collective organization and is therefore outside the scope of the defense offered by the MMPA. Thus, on remand, the jury should be instructed that in determining whether Jackson is entitled to a defense, the jury must determine whether the collective he participates in is a profit-making enterprise and further that in resolving that question, it should consider, in addition to other evidence of profit or loss, the size of the collective’s membership, the volume of purchases from the collective and the members’ participation in the operation and governance of the collective”
This is now the law of the land in California.
The appellate court opinion which the Supreme Court refused to reverse, is found here