Sunday, February 24, 2008
Letter Re: STATE BAR IGNORES ERRANT LAWYERS
Dear Mike Zapler, Reporter, San Jose Mercury News:
Thank you for your article, STATE BAR IGNORES ERRANT LAWYER (02/12/2006.)
Please direct me to find the Mercury News review of "nearly 1,500 state disciplinary actions over a five-year period found that just one of them involved prosecutorial misconduct. Criminal defense attorneys drew more notice from the State Bar of California, but not much more: Only 5 percent of the actions concerned criminal defense attorneys targeted for their work on behalf of clients."
As an innocent person, fighting against my homeowners association [HOA] I am now pursuing a complaint of misconduct by both the Riverside County District Attorney, and, the Riverside County Public Defender. Following are excerpts from the complaint:
Going into trial, greatly in need of medical treatment for heart problems, and finding myself represented by defense counsel that was blatantly unprepared, unmotivated and whose incompetence was stunningly conspicuous, forced me, an indigent 67 year old woman to take whatever the court offered, even though I was innocent.
I know, mistakes are made in trials, putting people in prison, even on death row and not everybody who's convicted is in fact guilty. And, I know that "bad lawyering" on both sides is what put me where I am today --wrongly prosecuted!
Innocent people continue to be convicted every day, and bad lawyering in every form facilitates many of these convictions as is fairly well documented by Innocence Project, Causes & Remedies, http://www.innocenceproject.org/causes
In 1998, the most recent year for which figures are available, almost 928,000 adults were convicted of felonies in state courts. Statisitcally it is estmated at least 9,280 and as many as 92,800 innocent people were convicted of crimes they did not commit. (Bureau of Justice Statistics Report, May 17, 1999)
But beyond mistakes, in certain instances we find multiple examples of "bad-cop" law enforcement officers who have certain agendas to not do their job of finding the truth, but rather, decide that they had better protect their position a the expense of innocent people. That is a separate complaint. SEE: COMPLAINT/ CATHEDRAL CITY POLICE and ABUSE BY RIVERSIDE COUNTY SHERIFF'S DEPARTMENT
Then the district attorney's office takes even more steps -- not to find out the truth -- but take steps needed to keep their conviction, ignoring the law, and their own oath. In theory, the prosecution's duty is to seek the truth. (See: ABA Model Rules of Professional Conduct 3.8 cmt.(1) "
A prosecutor has the responsibility of a minister of justice and not simply that of an advocate.
Remarkably, the overwhelming majority of prosecutors who obtain convictions of innocent people know or should know the defendant is probably not guilty. (SEE: Martin Kuz, No Way Out: Lawyers say the case against Bob Gondor and Randy Resh could be titled The Insider's Guide to Prosecutorial Misconduct; published in the Cleveland Scene, Jan. 15 2003 -- noting that prosecutors in the case committed grievous misconduct, Matin Yant stated: An assistant prosecutor told me . . . that there was hardly a day that went by that he didn't worry that they convicted two innocent men for a crime they didn't commit,").
The role of the prosecutor differs significantly from that of others who practice law, including criminal defense lawyers: A Prosecutor is held to a standard higher than that imposed on other attorneys because of the unique function he or she perfoms in representing the interests and in exercising the sovereign power, of the state ... the prosecutor represents "sovereignty whose obligation to govern impartilly is as compelling as its obligatin to govern at all; and whose interest, therefore in a criminal prosecution is not that it shall win a case, but that justice shall be done." Berger v. United States (1935) 295 U.S. 78,88 (People v. Hill (1998) 17 Cal 4th 800, 8. Prosecutors have a special obligation to promote justice and the ascertainment of truth. ... The duty of the district attorney is not merely that of an advocate. His duty is not to obtain convictions, but to fully and fairly present... the evidence..." People v. Kasim (1997) 56 Cal.App.4th 1360, 1378; "The prosecutor's job isn't just to win, but to win fairly, staying well within the rules. (United States v. Kojayan (9th Cir. 1993) 8 F.3d 1315, 1323). As an officer of the court, the prosecutor has a heavy responsibility to the court and to the defendant to conduct a fair trial. (United States v. Escalante (9th Cir. 1980) 637 F.2d 1197, 1203.)
And then the public defender is all too often synonomous with ineffective assistance of counsel. (SEE: Model Rules of Professional Conduct Rule 1.1 (1983)(amended 1998); A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.
There is blatant failure to communicate with the client, or, communicating in a dismissive, callous or hurried manner; perfunctory or no attempt at discovery; narrow, shallow or no investigation; failure to retain needed experts and/or test physical evidence; minimal preparation, weak trial advocacy and superficial or tentative cross-examination. (SEE: Model Rule of Professional Conduct Rule 1.1, cmt. 5 (1983) (amended 1998) competent handling of a particular matter involves inquiry into analysis of the factual and legal elements of the problem and use of methods and procedures meeting the standards of competent practitioners.)
The defense lawyer owes a duty of loyalty FIRST to the client. People v. Alvarez (1996) 14 Cal.4th 155, 239-240
Defense attorneys know or should know when the "deals" they broker will result in convicting the innocent. An attorney's professional responsibilities are set forth in Strickland v. Washington (1984) 466 U.S. 2668; People v. Pope(1979) 23 Cal.3d 412; and In re Alvernaz (1992) 2 Cal 4th 924.
A person accused, most often without any true investigation, is stigmatized simply by being charged. Then, not being able to testify or defend themselves in a kangeroo-court type of preliminary hearing only adds to the the impression that his or her silence is an indicator of guilt. Presumption of innocence, and reasonable doubt are totally ignored in these court settings. Interestingly, the court has held that it violates due process to use a defendant's silence against him, yet that is exactly what happens in this unjust process. Doyle v. Ohio, 426 U.S. 610 (1976
Then add to all this the lack of ethics from our representatives, SEE: ASSEMBLYWOMAN BONNIE GARCIA AND A LACK OF ETHICS