There’s been a lot of questions lately in regards to what this judge could do in the Frank Carson et al. preliminary hearing based on these discovery problems that the District Attorney’s Office is having. A little bit of research showed a couple of cases that could be applicable to this and they show the problems involved with getting charges or convictions overturned.

I just did a synopsis of these cases they’re not in their entirety I just wanted to give an idea of some of the things that are going on in the appeals court and these are fairly recent rulings.

Here is one case where sanctions were imposed by the trial court and then appealed by the prosecution.

People v. Superior Court (Mitchell)

One such appeal occurred in May 2010 and was People v. the Superior Court (Mitchell). This case was a murder charge from the results of activities by a criminal street gang. The Trial court had excluded multiple prosecution witnesses, dog scent evidence, and gunshot residue evidence as a sanction for the people’s failure to provide discovery. The people filed a petition for writ of mandate in the Appeals court contending that the trial court exceeded his authority under Penal Code 1054.5.

Under that Penal Code section the court concluded the trial court had exceeded its jurisdiction in excluding witness testimony because it did not consider or exhaust other sanctions before precluding the testimony. Its analysis applied with equal measure to the exclusion of the dog scent and gunshot residue evidence. The review and the relief they deemed were appropriate. The Appellate Court stated that it was not unreasonable harassment to force the defendant to defend the trial court’s orders in a Writ proceeding. In addition, they said in this case it was more true because the defendant invited the error by requesting preclusion instead of lesser sanctions.

Review of the trial court’s prohibited act was necessary to preserve the integrity of the law. The defense had contended that the trial court exhausted all other sanctions and therefore had the discretion to preclude the testimony, but they did not provide any record or citations establishing that the trial court ever employed or considered lesser sanctions prompting the people to produce discovery.

In that particular case the appeals court ordered the trial court to vacate its sanctions order.

In general, the people are barred from seeking an extraordinary writ if is not authorized by statute. If the prosecution has not been granted by statute a right to appeal or review any alleged error may be sought by petition for writ of mandate to determine if a trial court has acted in excess of his jurisdiction, and the need for such review outweighs the risk of the accused.

Venable v. Virga

A second case was Venable v. Virga that was heard in the United States District Court in June 2015.

This also was a case where the defendant was convicted in 2011for his involvement in activities from criminal street gang that resulted in a homicide. He was convicted of enhancements for use of a firearm and association with the criminal street gang. The homicide occurred in December 2007.

The overview of the case states the defendant had murdered a fellow gang member and shot him with a 38-caliber revolver because the victim was believed to been working as a snitch.

The Prosecution used in custody witnesses.

The defendant appealed stating:

  1. that he was denied a fair trial when the prosecutor failed to provide the him with timely and complete discovery regarding some of the witnesses.
  2. the defendant claimed the trial court erred in limiting defense counsel’s cross-examination of prosecution witnesses.
  3. They claimed the trial court erroneously denied defense counsel for motion of a mistrial and request to instruct the jurors to remedy the discovery violation that occurred when the prosecution did not timely inform defense about the witness’s cooperation with law enforcement in other cases.
  4. The evidence was insufficient to demonstrate that the defendant committed the crime for the benefit of the street gang.
  5. They also said that the cumulative effect of the errors warranted reversal.

The detective in the case was advised by another detective about the eyewitness the day before the preliminary hearing was to start. Detectives had said that no compensation had been given to the witness in any way shape and form which included money and/or criminal charge considerations.

The eyewitness also never explained what his motive was in providing information to law enforcement. The argument to the court was the witness credibility was in question if he cooperated with the police as an informant and if he
received some type of benefit for doing so. She also noted that no new case had been filed against the witness even though he had been arrested for criminal gang activity. The attorney wanted to question the witness if he was in fact acting as an informant, but not interested in the specific cases. Just wanted to know if he was a snitch; for how long, and the dates involved as compared to this case.

The court denied the attorneys request for a mistrial, but did allow the attorney to ask the detective if the eyewitness had given information in the past. In addition, did he benefit from any of that inner??? information. Eventually the court denied the attorneys request for jury instructions with respect to the late disclosure.

During the trial the detective gave consistent testimony on cross-examination concerning the eyewitness’s previous activities in providing information to law enforcement. And also, said that the eyewitness never asked for any type of compensation or benefit.

But after a somewhat lengthy cross examination of the detective it was revealed that the snitch/eyewitness, when taken from his cell to the interview room, told the detective that he had information to share on a homicide. Then the eyewitness asked Detective to help him on a parole violation. The detective responded with I can’t make you any promises. The attorney’s final argument was that the eyewitness testified, “he does not even talk to the police”, which was not true. But also, the detective testified that he was not compensated or benefited, but the eyewitness was arrested in possession of an AK-47 assault rifle and never charged. The defendant on trial was in possession of three bullets in that same instance and he was charged and convicted after arrest. The eyewitness had been arrested several times in the last few years prior and had never been charged with any crime.

The attorney’s final argument was that “he is a liar, he’s unreliable and he came up here to talk about someone else to help himself plain and simple.”

The California Court of Appeal rejected the petitioner’s claim stating:

there are three components to a failure to disclose exculpatory testimony or evidence.

  1. There was evidence favorable to the accused
  2. The prosecution suppressed the evidence
  3. And there was prejudice to the defendant

they ruled the first two components were met in this case because the prosecution had a duty to disclose the eyewitness had provided information. Under the due process clause of the federal Constitution the prosecution has a duty to disclose all evidence material to either guilt or punishment. Suppression of that evidence to either guilt or punishment can violate due process.

The disclosure duty exists irrespective of the prosecutor’s good or bad faith and extends to impeachment and exculpatory evidence. That duty also includes material evidence bearing on a witness’s credibility. Under Brady a prosecutor’s duty to disclose evidence favorable to the accused extends to evidence reflecting on the credibility of a material witness. This also includes any inducements made to that witness.

The Appellate court ruled that the defendant had not shown the impeaching evidence was material within the meaning of Brady and that they had suffered no prejudice.
And that the defense had not established there was a reasonable probability the result would’ve been more favorable to him had the impeachment evidence been timely disclosed.

The court also said that the jury was aware that the snitch/eyewitness was in custody on a parole violation when he first started discussions with the detectives. In addition, the jury also knew that in previous interviews the witness had not come forward with the information until he was in custody. The jurors also knew that the witness had subsequently provided reliable information to two detectives and there was evidence that the witness had not been charged with any new cases upon violating his parole.

They did make note in their ruling that in Brady v. Maryland the Supreme Court had held the suppression by the prosecution of evidence favorable to an accused upon request violates due process. And that the petitioner contends a prosecutor violated Brady when they did not timely inform them that the witness has given police information in other cases.

The court of appeal found that respondent did not dispute the first two components: that favorable evidence and suppression were met in this case, however the California Court of Appeal rejected petitioners Brady claim because the evidence in question was not material.

That is a quick summary of a couple of cases that are similar to what we are seeing in this Frank Carson et al. preliminary hearing and just for a little reference I will share both cases that I quoted from. There is another case I am currently reviewing but cannot give specifics on at this point.

As you read this rather long post you probably realize that there’s some similarities in the type of witnesses used in the activities that went on with those witnesses. Namely testimony from Patrick Hampton, Ronald Cooper, and of course Robert Woody, among others.

The bottom line is there are many remedies available to the Judge. They do include dismissal of the charges with prejudice, financial penalties which can be paid to the defense, or the new evidence cannot be used against the defendants but can be used by defense in favor of the defendants.



It also appears that Birgit Fladagar does not seem to be too concerned about this case as she is not shown up in this courtroom during the entire 15 months of the preliminary hearing. Especially after the judge took her to task for not doing that with the discovery issues in her office.