I Guess the Sixth Amendment isn't Dead Yet

In a recent case that was just published, entitled, People v. DiSandro, the Fourth District Court of Appeal in California decided taht a person charged with an infraction has a right to a court trial and a right to confront and cross examine the witnesses against him or her. The court cannot unilaterally carry out a court trial in the person’s absence unless the absence is knowing and voluntary. In this case, the appellant- DiSandro happened to be a post office mail carrier who was cited for speeding and driving with a load obstructing her view. Interestingly, the U.S. Attorney’s Office sent an untimely letter to the superior court, notifying the court that the U.S. Attorney's Office intended to remove the matter to the U.S. District Court. No record of the U.S. Attorney's Offices' letter appeared in the court record and a court trial was held in the Appellant's absence. Appellant appealed the judgment, asserting that her Sixth Amendment right to confront the witnesses against her had been violated. The Court of Appeals found that under California law and the Federal Constitution, even in infraction cases where a person is not faced with imprisonment, a person does have the right to a court trial and the right to cross-examine witnesses. In addition, the Vehicle Code provides for the procedures to be followed if a person fails to appear. The Vehicle Code states that if a person failst to appear, trial may not proceed unless the court makes a finding that the person’s absence is knowing and voluntary. However, in the end the Court of Appeal did not reverse the judgment because the court found that Appellant's presence would not have altered the outcome, thus the error was harmless. So the end result, is yeah!!! the Consitution is alive, but in the end Appellant gets the short end of the stick anyway.

The reason this case is important is because it technically prohibits judges from conducting court trials and finding people guilty on speeding, reckless driving, suspended license cases, etc., that are charged as infractions. How this will effect future court procedure is anybody's guess, but a strong argument can now be made that the court can't just find somebody guilty and send their case into collections like they've been doing all over the state for quite some time.

The Squeaky Wheel Gets the Grease

On Friday I had two pending cases set for hearings in Fresno Superior Court. On both cases I filed motions to suppress the evidence obtained by officer's illegal searches. Previously there had been no offer on the cases. One case involved possession of illegal narcotics, drug paraphernalia, and an allegation that my client was under the influence of narcotics. On the second case, my client was charged with possession of drug paraphernalia only. Previously, there had been no offer on the case, other than having my client plead out in both cases and take the jail time or an extensive drug program. We had tried several times to resolve the case informally prior to running the motions. The day before the motions were set to be heard the DA gave me a call and told me that if we agreed not to run the motions, he would dismiss one of the cases completely and the other case would be dismissed in 6 months if my client went to some AA or NA meetings and kept his nose clean. Now, that is the exact reason why I tell clients that the "squeaky wheel gets the grease." Before I ran the motions I was told to jump off a cliff- I wasn't getting anything. After the motions- an awesome result!!

The Constitution Doesn't Provide for the Defendant to See the Discovery in his Case??

In a decision dated as of June 24, 2010, which applies to all Criminal and DUI related cases, the Court of Appeal for the Second Appellate District held that California's criminal discovery statutes do not require the government to give private defense counsel discoverable evidence for free. Appellant was represented by a private attorney. The lawyer was told there were several pages of phone records that he could copy at 15 cents per page, or which he could view at the District Attorney's Office. The private attorney filed a motion to contesting the discovery costs, which was denied. He then filed a writ of mandate, contending that the statutory requirment to provide discovery is negated if the prosecution requires payment for the records. Astonishingly, the Court of Appeal in their infinite desire to perpetuate justice, found that there is no state or federal constitutional right to discovery!!! Rather, due process only provides that the government must disclose exculpatory evidence (evidence helpful for the defendant). The Court of Appeal stated that the law provides that the the prosecutor "shall disclose" certain information, but does not set forth the method for disclosure. The reviewing court found the law is satisified if the government makes the information available for review and for copying. The Court of Appeal noted that even indigent defendants are required to reimburse some or all of the costs of their defense, if they can do so. Therefore, it does not offend due process to require non-indigent defendants to pay reasonable fees to obtain discovery. In addition, if a non-indigent defendant decides not to pay for the discovery, the prosecutor must make reasonable efforts for to allow reviewing discoverable material at his or her office in a method that protects the attorney-client privilege.