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"How do you defend THOSE people?" It's probably one of the most common questions criminal defense attorneys get asked. My answer? THOSE people are your friends and your family members, and maybe even you... Although I sincerely hope the best for you all, some of you may drive a little to fast, drink a little too much, lose your temper or make a mistake and anyone, on any day, can be accused of committing a crime they didn't commit. This compelling article emphasizes that very idea. It is an amazing story-- about a man accused of a brutal crime he didn't commit, a woman who would go to any lengths to gain custody of her child, and a police officer who acted with the utmost of integrity to bring the truth to light:
[www.amyguerra.com] On the cusp of Fresno's first police auditor's initial report, several recent articles addressed related issues:
From an April 13th, 2010 Fresno Bee article titled "Fresno's Police Auditor Plans First Report":
"Aubrey said he plans in May to deliver a three-month review of what he's been doing since since Jan. 1. He said the report to the City Council will include his progress in tracking 220 citizen complaints against the Police Department or inquiries about officers' actions that have come in during that time.
But the report will not include results of Aubrey's audits of Police Department investigations of its officer-involved shootings.
Public concerns about police use of deadly force, and the integrity of the department's investigations of itself, roiled Fresno's political waters for more than a decade. A divided City Council, with the strong support of Mayor Ashley Swearengin, approved creation of the position in March 2009.
The Office of Independent Review has broad authority to audit Police Department activities, but review of officer-involved shootings is the main reason for its existence. Aubrey and city officials said audit summaries will come in time."
Read more: http://www.fresnobee.com/2010/04/12/1894468/fresnos-police-auditor-plans-first.html#ixzz0mGcAJ3RJ
The article above discusses city council's concerns about the position in light of budget cuts, which in conjunction with the Fresno County D.A.'s plans to stop investigation of officer shootings, may serve to undermine public trust, an idea that Fresno Police Chief Jerry Dyer opposes in the article cited below:
"Dyer acknowledged that perhaps all Fresno officer-involved shootings fall into one of these categories. He wants Egan to continue investigating Fresno officer-involved shootings because public trust is fragile yet vital to his department's effectiveness.
"I just believe that the oversight provided by the District Attorney's Office is critical for any law enforcement agency because of today's environment," Dyer said. "There is incredible suspicion and skepticism of government and of law enforcement. Even with the district attorney's oversight, there is still a feeling out there amongst many that there is collusion between the two" agencies."
From an April 24th, 2010 Fresno Bee article titled,"D.A. Drops Policy to Probe Fresno Officer Shootings":
"The Fresno County District Attorney's Office has decided to end a long-standing practice of probing all Fresno Police Department officer-involved shootings -- leaving the city's new police auditor as the only check on internal investigations.
Elizabeth Egan said her department, crippled by the budget crisis, can no longer afford to routinely investigate incidents in which Fresno police officers wound or kill a civilian.
"It's not that [DA investigations] are not useful -- I believe they are useful," Egan said. But "I've cut down on everything that is not core business."
Egan made the announcement in an interview with The Bee last week as her office and Fresno police worked to answer questions from the newspaper about why at least 30 shooting investigations dating back to 2004 have, according to police, fallen into limbo after being forwarded to the district attorney for review."
Read more: http://www.fresnobee.com/2010/04/24/1909688/da-drops-policy-to-probe-fresno.html?storylink=mirelated#ixzz0mGcrf1zx
Nationally, Color Lines, a "newsmagazine on race and politics" summarized the results of a California Public Records Act request from the Fresno Police Department in an article titled "Fresno Cops Involved in Repeat Shootings Still on Duty":
A California Public Records Act Request uncovered a previously withheld list of 27 Fresno police officers involved in repeat shootings of civilians from 2002 through 2009, 25 of whom, according to an official with the Fresno Police Department, are still on active duty today. Of these 27 officers, four were involved in at least three separate shooting incidents over the same period. One officer, Michael Palomino, was involved in four shooting incidents. In the context of a statewide investigation focusing in on four major police departments, the Fresno Police Department stands out in scale. During the same period, the similarly sized Oakland Police Department had only five officers involved in repeat shootings, although Fresno enjoys a much lower crime rate.
Fresno Deputy Chief Nevarez said that the integrity and transparency of investigations is key to retaining community trust in the department. “In order to have that trust, there has to be an element of transparency,” said Nevarez. “Whatever we can disclose to the community, we will.” Yet he said the Police Officers’ Bill of Rights prevents him from releasing any information on disciplinary action that may have been taken against the 27 officers.
Read more: http://www.colorlines.com/article.php?ID=707&p=3
[http://www.amyguerra.com] The title of this blog comes from a New Yorker article by the same name. The article, subtitled "Did Texas execute an innocent man?" tells the sad, but enthralling story of Cameron Todd Williams, a death-row inmate put to death in 2004 for the arson deaths of his three children. Mr. Williams' case gives insight into how a culmination of factors can either convict or absolve a person, depending on the interpretation.
The fire moved quickly through the house, a one-story wood-frame structure in a working-class neighborhood of Corsicana, in northeast Texas. Flames spread along the walls, bursting through doorways, blistering paint and tiles and furniture. Smoke pressed against the ceiling, then banked downward, seeping into each room and through crevices in the windows, staining the morning sky.
Buffie Barbee, who was eleven years old and lived two houses down, was playing in her back yard when she smelled the smoke. She ran inside and told her mother, Diane, and they hurried up the street; that’s when they saw the smoldering house and Cameron Todd Willingham standing on the front porch, wearing only a pair of jeans, his chest blackened with soot, his hair and eyelids singed. He was screaming, “My babies are burning up!” His children—Karmon and Kameron, who were one-year-old twin girls, and two-year-old Amber—were trapped inside.
Another portion of the article touched on the troubling nature of Mr. Willingham's representation, which was upheld despite his claims that hi. In the context of the article's discussion of alternative explanations for the fire, a quote from Willingham's own attorney stood out:
“All the evidence showed that he was one hundred percent guilty. He poured accelerant all over the house and put lighter fluid under the kids’ beds.” It was, he said, “a classic arson case”: there were “puddle patterns all over the place—no disputing those.”
Willingham often told his parents, “You don’t know what it’s like to have lawyers who won’t even believe you’re innocent.” Like many inmates on death row, Willingham eventually filed a claim of inadequate legal representation. (When I recently asked Martin about his representation of Willingham, he said, “There were no grounds for reversal, and the verdict was absolutely the right one.” He said of the case, “Shit, it’s incredible that anyone’s even thinking about it.”)
Cameron Todd Willingham, Texas, and the death penalty : The New Yorker http://www.newyorker.com/reporting/2009/09/07/090907fa_fact_grann#ixzz0k9BdLs7k
According to recent case law, an officer does not have the legal authority to make a promise that charges will be dismissed. In the redacted opinion People vs. C.S.A. (A122776), "[t]he trial court found defendant and the local police department entered into a cooperation agreement, the essence of which was that if defendant supplied certain information, the criminal charge and probation violations would "'go away.'" While the court recognized a limited number of circumstances under which the agreement could be enforced... the exceptions were few. Many defense attorneys are concerned that the general public is not aware of this and suggest that those who find themselves in a situation to negotiate with officers proceeed with caution:
"If the police offer you a deal in exchange for cooperation, the first thing to
do is demand to speak with a lawyer, and the second is demand confirmation
from the district attorney's office. Without that explicit affirmation from
prosecutors, a deal to help with an investigation in exchange for a shorter
sentence or reduced charges is no deal at all." (Quote from Nancy King's
blog, available here.)
On March 2nd, 2010, the Fresno County Grand Jury, a group of citizens appointed to investigate civil matters, released a report about the County Coroner's ruling of a Fresno woman's death as a suicide. Among their multiple concerns:
*Significant discrepancies in police reports
*Unfiled police reports
Although it does not garner the same public concern, defense attorneys all over the nation deal with these type of scenarios on a daily basis. However alarming it may be, this type of scenario is commonplace within our justice system. This report demonstrates the importance of objective and thorough investigation.
Imagine the opposite situation-- what if after only two hours of investigation, mounting evidence supporting the contrary, the coroner concluded foul play was present and someone was charged with a capital offense? What if because of a conclusory investigation, a Coroner overlooked a suicide note, or a bottle of prescription medicine, or anything else that indicated that a wound was self-inflicted? Investigation designed to confirm the suspicions of an individual investigator/officer, rather than to seek the truth objectively is always going to be problematic.
It is my hope that this report serves to enlighten the public regarding some of the problems inherent in the system-- particularly the damage that "jumping to conclusions" can have on the lives of both victims and those charged with a crime.
Fresno County Grand Jury Report, dated March 2nd, 2010
"Report Assails Conclusions in Fresno Woman's Death"
About the Author
Amy K. Guerra is a criminal defense attorney in Fresno, CA. In addition to her career in criminal defense, she's worked as a freelance writer and within the non-profit sector. She continues to be active in the community and enjoys writing about issues in criminal law relative to their community impact.
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Amy K. Guerra, Attorney at Law
2014 Tulare St. #400
Fresno, CA. 93721
Copyright 2010, Amy K. Guerra, Esq. All Rights Reserved