LAW: The Surrogate Prosecuter
The fallibilities of alcohol detecting devices or any admittable scientific evidence is not limited to the device itself. Expert testimony is usually paid for, and as recently exposed, the questions can be prepared before there is even a case. This testimony will either protect an investment or defendant, and when asked a question one doesn't want the information released, they can just testify ignorant,"not that I know of". An investigation by the Mercury News for an article showed how judges are acting as a second prosecuter in a fourth of jury trials in Santa Clara County.
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. Attorney Elissa Eckman 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.'' Lee apparently questioned a witness, then later gave a closing analysis of his own to the jury, on issues raised during his questioning. The victim in this case, nowhere to be found, so an officer quoted the victim as accusing Guerrero, the two other gang members with Guerrero that night testified that not to be true. The judge relentlessly tried to discredit the gang members testimony calling them convicted felons and naming one a convicted perjurer. The jury was still deadlocked, but how would this case have turned out without the second prosecuter, a fair trial by a jury of peers..........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.'' While veteran judges cited concerns that this behavior invites trouble, the judge remains behind the bench, and he said, in recent years he has not offered jurors his own summation, nor has he engaged in questioning witnesses.
What was found:
• 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.
... 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...
...More than a third of the county's 79 judges spent the bulk of their careers in the district attorney's office, .......
...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...
Handling evidence• 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...
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.
Instructing jurors• 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.
In the world of wellness courts, a defendant should consider themself fortunate to see a jury, possibly another Constitutional issue with continuous monitoring, for challenging the science would be as simple as bringing the contract up in testimony. And to turn reasonable doubt into doubt, simply expose the bias research and/or controls, the magnitude of unpublished research, and lack of research on the theory of ones defense to contradict the "not that I know of" testimony.
Lawrence Taylor writes," Note the comment about "lackluster defense attorneys", although I suspect a better characterization would be "beaten-down defense attorneys". Generally viewed by today's American public as obstructionists, the simple fact is that there is only one thing standing between the combined power of police, prosecutors and judges and a corrupt criminal justice system. Neutralize that individual, as has been done here, and truth, justice and the Constitution become little more than fine-sounding memories."
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. Attorney Elissa Eckman 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.'' Lee apparently questioned a witness, then later gave a closing analysis of his own to the jury, on issues raised during his questioning. The victim in this case, nowhere to be found, so an officer quoted the victim as accusing Guerrero, the two other gang members with Guerrero that night testified that not to be true. The judge relentlessly tried to discredit the gang members testimony calling them convicted felons and naming one a convicted perjurer. The jury was still deadlocked, but how would this case have turned out without the second prosecuter, a fair trial by a jury of peers..........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.'' While veteran judges cited concerns that this behavior invites trouble, the judge remains behind the bench, and he said, in recent years he has not offered jurors his own summation, nor has he engaged in questioning witnesses.
What was found:
• 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.
... 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...
...More than a third of the county's 79 judges spent the bulk of their careers in the district attorney's office, .......
...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...
Handling evidence• 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...
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.
Instructing jurors• 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.
In the world of wellness courts, a defendant should consider themself fortunate to see a jury, possibly another Constitutional issue with continuous monitoring, for challenging the science would be as simple as bringing the contract up in testimony. And to turn reasonable doubt into doubt, simply expose the bias research and/or controls, the magnitude of unpublished research, and lack of research on the theory of ones defense to contradict the "not that I know of" testimony.
Lawrence Taylor writes," Note the comment about "lackluster defense attorneys", although I suspect a better characterization would be "beaten-down defense attorneys". Generally viewed by today's American public as obstructionists, the simple fact is that there is only one thing standing between the combined power of police, prosecutors and judges and a corrupt criminal justice system. Neutralize that individual, as has been done here, and truth, justice and the Constitution become little more than fine-sounding memories."
posted by marcellus91872 at 4:13 AM
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