Discovery & Procedures

[LIGHTHOPE]

What is the name of your state (only U.S. law)? CA
I am stuck and really would appreciate thoughts, advice, etc. A grandfather of one of my son's friends is facing criminal prosecution and has decided to appear pro-per- (yeah, I know..) Knowing that I do information consulting and research, they have asked me to help, however my experience is more in Family/Juvenile which I explained- he understood but asked to try to help him anyway I could. So, I agreed to try and assist with info, making sure he understood I cannot give him legal advice- I can only pass on info letting him know of specific issues and practice, and my interpretation of options without influence...- All I ask anyone willing to read this is to point me in the direction where to look for the following specific issues, and if anyone is willing, opinions are welcome too.
Attempting to make sense of this case and gather information I have come across a few things that do not seem right.
On the night Defendant was taken into custody, defendant states that the police came to his home, did not execute a search, just read him Miranda and took him. Ok, however- arresting officers were actually sheriff's dept from neighboring county without a warrant. Police report fails to note location where defendant was taken into custody and by whom(odd ?).The discovery contains Co-defendants reports which include location/address of their arrests. -- Issue: jurisdictional boundaries/authorityDefendant expressed to officers he wasn't feeling very well, and had been having episodes of black outs for a few days. It was determined that defendant was incoherent and needed medical attention. Sheriff takes him to the E.R. where he is treated (and ironically administered and prescribed medication that would keep him unintelligible) and then released. They then took him to conduct interview and ultimately book him into county jail. The detectives were aware that he was medicated and not completely lucid. As a matter of fact, defendant doesn't recall interview, except that he kept falling asleep. He believed the detective was an old friend of his, commenting on how lucky he was to have (detective) as a friend, what a great guy he is, etc. Reality is that he had never met him prior to that night-- Admissibility of statements? Any procedural or liberty violations? Discovery/evidence reports, filings were obtained after requesting them. Obviously omitted is any account of the emergency room visit, defendant's inarticulate rambling, or location of arrest. Thankfully medical records have been obtained verifying events. Other noticeable exclusions : the 2nd co-defendant interview, account of events and arrest report. How is the absence of information presented to the court so a demand for discovery can be made? Defendant believes that, due to certain circumstances, this may have been part of some 'sting'. I am inclined to ignore this paranoia, however, there seems to be some merit to his theory. How would he find out, especially since it was not detailed in reports, so ultimately he can request evidence disclosure on this as well?
And finally, is there a conflict when the judge assigned to trial already presided over one of the other defendant's hearings, eventually sentencing that person? If it is a conflict, what is the process to remedy it?Anyone willing to honestly give me direction in this would be so helpful.

 

[CdwJava]

On the night Defendant was taken into custody, defendant states that the police came to his home, did not execute a search, just read him Miranda and took him. Ok, however- arresting officers were actually sheriff's dept from neighboring county without a warrant.

All because they did not present an arrest warrant does not mean one did not exist. They do not have to have one in hand to make the arrest. Also, the officers from a neighboring county CAN make arrests for probable cause even in another county.

Were officers part of a multi-jurisdictional task force?

Until you know what happened and why the arrest was made, there really is nothing here to address the charges.

The arrest is not the issue he will be dealing with at trial.

Police report fails to note location where defendant was taken into custody and by whom(odd ?).The discovery contains Co-defendants reports which include location/address of their arrests. -- Issue: jurisdictional boundaries/authority

Again, in CA officers' authority extends throughout the state. The issue will be one of jurisdiction with regards to prosecution, not so much the arrest. While it might be a procedural issue, it won't be an issue with regards to any criminal matter.

Defendant expressed to officers he wasn't feeling very well, and had been having episodes of black outs for a few days. It was determined that defendant was incoherent and needed medical attention. Sheriff takes him to the E.R. where he is treated (and ironically administered and prescribed medication that would keep him unintelligible) and then released. They then took him to conduct interview and ultimately book him into county jail. The detectives were aware that he was medicated and not completely lucid.

His attorney ... oh, yeah, he's doing this himself - bad idea ... HE can try to argue that he was incoherent as a result of the administered drugs, but he'd better hope that he can march in a parade of witnesses that can back up his story that he was obviously loopy and medical reports that might support that as well.

Admissibility of statements? Any procedural or liberty violations?

He can raise the issue at court. But, unless he has any experience at this sort of thing, he will have a hard time doing this on his own.

Why isn't he at least accepting the assistance of a public defender? Trying to fight a case on procedural technicalities and seeking to suppress evidence is NOT a do-it-yourself affair unless you want to go to jail.

[/B]Discovery/evidence reports, filings were obtained after requesting them. Obviously omitted is any account of the emergency room visit, defendant's inarticulate rambling, or location of arrest. Thankfully medical records have been obtained verifying events. Other noticeable exclusions : the 2nd co-defendant interview, account of events and arrest report. How is the absence of information presented to the court so a demand for discovery can be made?

Discovery is a simple matter and if he has the reports it sounds as if it has already been made.

He can request discovery of all reports and evidence through the DA.

If the location of the arrest and the hospital visit are not in the reports he currently has, then there could be a serious screw up on the part of the agency and the lack of documentation - even if innocent - might harm the prosecution's case. But, if he has not obtained reports through discovery, it is very likely that he has yet to receive all of them. Law enforcement agencies do not generally have to release reports on demand as they can be classified as "investigative files" and held until ordered released by a court or provided by the DA through discovery.

And finally, is there a conflict when the judge assigned to trial already presided over one of the other defendant's hearings, eventually sentencing that person? If it is a conflict, what is the process to remedy it?Anyone willing to honestly give me direction in this would be so helpful.

All because someone has been before a judge does not disqualify the judge. If that were the case, we would never be able to have sitting judges because eventually they will come across prior defendants. In small counties judges would be pretty much out of business in a few months as they come across the same people all the time.

No conflict.

 

[LIGHTHOPE]

Thank you so much. Your answers were very helpful in clarifying things. Does he just write a formal letter to the DA requesting what he thinks is missing and informing DA of the whole hospital matter? I am assuming there isn't a council form since the only one I am aware of is for civil....
Regarding a lawyer, A conflict panel was assigned and he was given legal representation, however from what I understand they did not get along very well. Defendant supposedly discussed his concerns with atty and asked him if it were possible that the police statement pertaining to being taken to hospital mid arrest could have been intentionally withheld and atty replied that he was a paranoid old man and no grand conspiracy is being plotted against him. Defendant told said atty he wanted to try to obtain the missing reports if possible before moving forward. Atty said he wasn't going to waste his time and told judge they were ready to proceed. Defendant fired him. Fact of the matter is, wouldn't anyone be curious how an elderly man was put into the thick of an investigation as a co-defendant to a couple of twenty somethings he wasn't aquainted with? I know I would want to find out. He is being charged with recieving stolen property(felony) that co defs stole. One of the men approached and asked client to help him with some gas money and he'd leave him said items as collateral. Client said no, don't worry about it, but the young man made a big deal about taking the items and it was a matter of pride , etc etc. And you can guess the rest... Anyway, he tells me he will hire his own atty but wants all the "leg work" done first so he can present it to whatever lawyer he hires so he doesn't face more unwillingness to take a closer look at the circumstances. Understandable to a degree I suppose when he's facing 3 years (according to DA)

 

[CdwJava]

Thank you so much. Your answers were very helpful in clarifying things. Does he just write a formal letter to the DA requesting what he thinks is missing and informing DA of the whole hospital matter? I am assuming there isn't a council form since the only one I am aware of is for civil....

Informal discovery is not rocket science, but it must be made in a form and structure that is clear. He can purchase a sample CA discovery notice from any of a number of legal form websites, but ultimately the responsibility for structure and filing will be his.

Regarding a lawyer, A conflict panel was assigned and he was given legal representation, however from what I understand they did not get along very well. Defendant supposedly discussed his concerns with atty and asked him if it were possible that the police statement pertaining to being taken to hospital mid arrest could have been intentionally withheld and atty replied that he was a paranoid old man and no grand conspiracy is being plotted against him. Defendant told said atty he wanted to try to obtain the missing reports if possible before moving forward. Atty said he wasn't going to waste his time and told judge they were ready to proceed. Defendant fired him.

There is a difference between publicly appointed counsel and paid counsel. Paid counsel gets paid a LOT of money to hold a person's hand and address what they believe or know to be unlikely or impossible motions. A public defender does not have the time or inclination to tap dance with clients and waste time on actions that are unlikely to result in anything. It could well be that the attorney saw something in it that your friend did not.

Anyway, he tells me he will hire his own atty but wants all the "leg work" done first so he can present it to whatever lawyer he hires so he doesn't face more unwillingness to take a closer look at the circumstances. Understandable to a degree I suppose when he's facing 3 years (according to DA)

It is a virtual certainty that any attorney he hires will do his own "legwork."

Your work on behalf of your friend is NOT an attorney-client work product, and you can potentially be called to testify against your friend! Anything he tells you is NOT protected!

Now, his attorney CAN hire investigators or do his own work and this information can be protected and confidential.

Similarly, if you do some of this legwork and do not turn it over to the prosecution if required as part of discovery, your friend could find that all of your work is for naught as it may be unable to be used due to lack of discovery.

These are issues that your friend needs to concern himself with. Your assistance may very well muddy up the waters and not actually help him all that much.

Finding out info on the internet is one thing, but if you go and obtain any evidence, documents, statements, etc., you may well find yourself shooting him in the foot.

If you want to help him, assist him locating and obtaining counsel.

 

[LIGHTHOPE]

CdwJava, you've been very kind.Thank you again so much. You brought up a valid point regarding my involvement as well. To be honest, I wasn't very comfortable with the extent of this persons expectations of me.(a lot of work and a lot of boundary issues) Previously I worked exclusively with one attorney who had me going from one end of things to the other- chasing expert witnesses, compiling data, individual research, proof reading or actually drafting her motions, even calling in sick for her when she couldn't make it to court- all sorts of misc stuff. Mostly family law related issues, divorce and finding hidden assets, review business reports , and custody/visitation issues- especially in cases of abuse or neglect. After tiring of her making excuses for not paying me I found myself filling out those 1099's . Past clients referred me to their friends and before long I was being brought on by various attorneys as a
3rd party- either way I am protected since service agreement between ALL gets signed. This defendant needed the help, someone to guide him a little, explain what was going on (not sure if he's "all there") but you are right- without the provisions my involvement could backfire= not really worth it (plus he wasn't paying me as it was a favor for his grandson). I asked around for refs to respected attys who may fit w/ this defendant and I was able to pass on a couple of names. Thanks again and again for helping me help him!