San Diego Cases involving DNA prior to April 2011 need to be reviewed… immediately. And the San Diego DA’s office has known this for a long time.

In April 2011, the San Diego Police Department (SDPD) crime lab fundamentally changed the way it interprets DNA evidence involving mixture samples. Mixture samples are DNA evidence collected that contain biological material from two or more people.

Prior to April 2011, the SDPD was very liberal about making match inclusions in mixture samples.  That changed in April 2011.  This all came about because the Scientific working Group on DNA Analysis Methods (SWGDM) published updated interpretation guidelines for DNA mixture samples in 2010.  SWGDAM is a national association of forensic DNA scientists who recommend quality assurance standards for forensic laboratories all over the country, including the FBI.  The 2010 SWGDAM guidelines proposed a much more conservative approach to interpreting mixture samples.  The change was, in part, a response to criticism from world renowned DNA scientist Bruce Budowle and others.

After SWGDAM published its 2010 guidelines, many crime labs across the country followed suit and implemented new interpretation protocols in line with the 2010 SWGDAM guidelines.  Because of these significant changes in interpretation protocols, some jurisdictions began reviewing older cases to determine whether there were any convictions that were based on the old, outdated protocols.  Such reviews were initiated, for example, by a District Attorney’s Office in Texas.

The San Diego Police Department crime lab also updated their guidelines and no longer uses the outdated protocols. Hopefully, your jurisdiction did the same.  However, any pre-2011 convictions based on DNA inclusions of mixed DNA samples may, and probably did, use the outdated interpretation protocols. Many of these convictions, if re-evaluated under the new SDPD crime lab protocols (and SWGDAM guidelines), would be inconclusive.  Many others may still be inclusions but with a less compelling population frequency associated with the inclusion.

In other words, DNA opinion evidence may have changed in many cases that substantially benefits the defense, either because the person is no longer considered an inclusion, or they are included at a far lesser probability.

I am currently prosecuting a state Writ of Habeas Corpus on this very issue.  My client was considered a minor contributor to a swab of the inside palm area of a pair of gloves according to the outdated DNA protocols.  When re-evaluated under the new guidelines, in was inconclusive whether he was a contributor.  All substantive filings on this state writ can be found here.

The San Diego District Attorney’s Office knew about this DNA issue in 2011.  But they didn’t tell anyone.

As part of my investigation into the matter, I discovered a memo from the SDPD Crime Lab to the San Diego District Attorney’s Office dated May 4, 2011 detailing the changes in the interpretation guidelines. The memo specifically informs the DA’s office that the new guidelines will result in more samples that cannot be interpreted.  It states “It is likely the new SDPD guidelines will result in more samples that cannot be interpreted due to their complexity and/or low level.”

For the defense community there are some very obvious and important implications here. Convictions prior to April 2011 that were based on a defendant’s DNA being included in a mixture sample, must be reviewed to see if the new guidelines result in a favorable interpretation for the defense.

Under Penal Code 1473(e)(1), a fundamental change in expert opinion is considered a “repudiation” and is grounds for writ of habeas corpus if such opinion is relevant and material on the issue of guilt. This means that if the person convicted was an inclusion, but under the more recent guidelines it is inconclusive, he may have specific statutory relief under Penal Code 1473(e)(1) based on repudiation of the expert’s opinion at trial.  See In re Richards (2016) 63 Cal.4th 291.

Even further, the fact that the San Diego County DA had this information in 2011 and did not alert the defense community or start its own review of affected cases, raises some serious issues of public concern. The inaction of the DA’s office may be a wide scale “Brady” (Brady v. Maryland (1963) 373 U.S. 83.) violation and it must be investigated.

Hiring an investigator may be the most important thing you do in defense of your criminal charges.

Retaining a good criminal defense investigator ensures that your defense team can hit the ground running.

Most people who get charged with a crime have enough common sense to hire an attorney. However, not many people think about hiring a private investigator. Truth is, a criminal defense investigator may be just as, if not more, important than the attorney.

While the attorney can present evidence and witnesses to the court, an investigator can locate and interview witnesses, gather other evidence that is necessary to defend a case, and write legally required reports. For various legal reasons, your attorney cannot take on this role.

An investigator can

  • Find new witnesses that the police have not interviewed.

  • Conduct an independent interview of witnesses who have been contacted by the police. These separate interviews may uncover new information or contradict crucial information contained in the police reports.

  • Locate exonerating documents and other evidence the prosecutor has not found prior.

  • Gather mitigating evidence that helps reduce the sentence for the defendant.

  • Assist in subpoenaing witnesses and escorting them to court to ensure a full and fair defense at trial.

  • Help with trial preparation.

Its Safe!

Hiring an investigator is safe. Information gathered by an investigator hired by your defense attorney falls under the discretion of Attorney Work Product Privilege. If the information is not helpful to your case, it won’t be disclosed to the prosecution or the court.

You Might Not Have to Pay For It

If a client cannot afford a criminal defense investigator, I often can complete an application for the county to pay for one.  When an investigation is necessary to ensure a full and fair defense and a defendant cannot afford the upfront costs, the court can order the county to pay the cost of the investigator.

White Collar sentence enhancements mean big penalties for big crimes

California has notoriously harsh penalties for white collar crimes involving large amounts of money. Anyone fighting a white collar case as a defendant should be aware of these sentence enhancements because they can substantially increase the prison term one may have to serve. There are two basic sentence in enhancements under California Law that can increase the prison term for defendants facing white collar charges; “The Great Taking” and the “Aggravated White Collar Enhancement.”

The Great Taking Enhancement

Under California Penal Code § 12022.6, defendants face mandatory and consecutive additional prison time when the amount of loss to the victim is extraordinarily high. While this enhancement is generally used in white collar offenses, it is not limited to them. It can be used in ANY offense where the victim suffers a monetary loss.

  • An additional 1 year prison if the victim’s loss exceeds $65k.

  • An additional 2 years prison if the victim’s loss exceeds $200k.

  • An additional 3 years prison if the victim’s loss exceeds $1.3 million.

  • An additional 4 years prison if the victim’s loss exceeds $3.2 million.

The Aggravated White Collar Enhancement

Unlike the “Great Taking,” the “Aggravated White Collar” enhancement applies only to white collar offenses. The code specifically requires that the defendant commit “two or more related felonies, a material element of which is fraud or embezzlement, which involve a pattern of related felony conduct…” Penal Code § 186.11.

  • Under this enhancement, defendant’s face an additional 2, 3 or 5 years (judge’s discretion) for crimes where the amount taken exceeds $500k

Criminal Defense Attorney explains DUI

Criminal defense attorney Matthew J. Speredelozzi explains what to do if you’re pulled over for allegedly driving under the influence of alcohol or drugs.

Decline Field Sobriety Tests

If you’re arrested for suspicion of DUI, the officer will likely want to administer field sobriety tests on you.  These may include the Horizontal Gaze Nystagmus (follow a pen with your eyes), the Romberg (stand and count to thirty), the One Leg Stand (stand on one leg and balance) and the Walk and Turn (walking on a straight line touching heel to toe).  You are not required by law to take these.  Therefore, you are well within your rights to politely tell the officer you are not willing to participate.

Refuse PAS Breathalizer

There is a difference between the breath test police officers give at the arrest site and the chemical test given at the police station.  The test on the street is called a Preliminary Alcohol Screen (aka PAS).  The PAS test is not required if you are over 21.  Additionally, the officer is required to inform you that you are not required to take the PAS test.

You Must Submit to a Chemical Test

If you are lawfully arrested for drinking and driving, you are required under California’s implied consent law to submit to a chemical test for the detection of alcohol.  The chemical test will either be a breath, blood or urine test.  The officer is required to inform you of your obligation under implied consent, however you do not have a right to have an attorney present before you take the test.

Secure Bail

If you are booked into jail and the Sheriff sets bail, likely it will be around $2,500 for a first offense.  You can call a bail bondsmen to bail you out for 10% of the cost of the cash bail.

Call a Lawyer

DUI cases are complex and nuanced.  There are a myriad of defenses that a skilled defense attorney can litigate.  These include everything from biological factors to faulty forensic evidence on behalf of the police and prosecution.  But the clock is ticking.  As with any other criminal offense, some of your important rights are time sensitive.  It is imperative that you contact a lawyer who practices DUI immediately.

Call the DMV Safety Office

You must contact the DMV within 10 days of your arrest or you will lose the right to contest your DMV license suspension.  When you contact them, make sure to request a stay on your driver’s license suspension, discovery of the evidence they intend to use at your hearing, and a hearing to determine whether your license should be suspended for DUI.

What the Public Needs to Know about Tiny Doo and the Prosecution of the Lincoln Park Blood Gang

Recently, the arrest and prosecution of rapper Brandon Duncan, aka “Tiny Doo” has garnered national headlines because he’s been arrested and charged with a crime based on the content of his music.  I am the attorney for Duncan’s co-defendant Glenn Gray.

Duncan and the other men are being prosecuted under Penal Code § 182.5 on the theory that they benefited from several shootings in 2013.  For many of the defendants, including my client Glenn Gray, the prosecution admits there is no evidence that they participated in or had knowledge of any of the shootings.  Instead, the San Diego District Attorney theorizes that these men benefited from the shootings because their reputation in the gang (and on a larger scale, in the community) improved as a result.  The prosecution’s key evidence is law enforcement testimony in the form of “gang experts” and facebook photos and postings.

The media has missed some key points in their coverage of this case.  Here are my initial impressions of the problematic legal issues:

  1. Duncan is not the only defendant whose constitutional rights are being trampled by the government.  The public and media seem to be concerned only with Duncan, who they view as being prosecuted for the content of his music.  The real travesty in this case is that Duncan, along with his co-defendants, are being prosecuted for crimes that even the prosecution admits they had nothing to do with.  Most of the co-defendants in the case are similarly situated as Duncan in that they are not principal actors in any of the shootings. What I mean is that they were not directly involved in nor did they have any direct knowledge of the shootings.  For example, my client, Glenn Gray, was actually incarcerated in federal custody at the time five (5) of the shootings took place.
  2. The California State Assembly thought Penal Code § 182.5 was unconstitutional when it was initially placed on the ballot in 1998.  (See State Assembly AB 26 Bill from 1998.)  State legislators called the statute “vague and ambiguous.”  Understandably, they had concerns that it unconstitutionally rendered each gang member liable for every crime committed by a fellow gang member.  It was defeated at the State Assembly.  It only became law two years later in 2000 when it was put in the hands of the general electorate under Proposition 21.  The public most likely didn’t have a thorough understanding of the constitutional implications of the law and were surely inundated with the pro-law-enforcement ad campaign supporting it.
  3. The law was literally written and sponsored by the prosecution.  Seriously.  The California District Attorneys Association (CDAA) is a professional association of California prosecutors that partakes in lobbying activities.  The San Diego District Attorney’s Office works closely with the CDAA.  They were the main drafter and sponsor of both 1998 Assembly Bill AB-26 and Proposition 21.  No wonder the law seems to create a seemingly endless reach of government to incarcerate individuals even with little or no evidence of real criminal culpability.

Shouldn’t we stop and think before creating laws that incarcerate individuals for crimes they didn’t even commit?

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