Welcome to the LSIS Investigative Journal

Welcome to the LSIS Investigative Journal

Friday, October 7, 2016

CA Governor Brown Signs AB-1909 : Extends Crime of Falsifying Evidence to Prosecutors

Assembly Bill No. 1909

An act to amend Section 141 of the Penal Code, relating to crimes.

Approved by Governor  September 30, 2016.
  Filed with Secretary of State  September 30, 2016.

AB 1909, Lopez. Falsifying evidence.

Existing law makes it a misdemeanor for a person, or a felony for a peace officer, to knowingly, willfully, intentionally, and wrongfully alter, modify, plant, place, manufacture, conceal, or move any physical matter, digital image, or video recording, with the specific intent that the action will result in a person being charged with a crime.

This bill would make it a felony punishable by imprisonment for 16 months or 2 or 3 years for a prosecuting attorney to intentionally and in bad faith alter, modify, or withhold any physical matter, digital image, video recording, or relevant exculpatory material or information, knowing that it is relevant and material to the outcome of the case, with the specific intent that the physical matter, digital image, video recording, or relevant exculpatory material or information will be concealed or destroyed, or fraudulently represented as the original evidence upon a trial, proceeding, or inquiry.
By creating a new crime, this bill would impose a state-mandated local program.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that no reimbursement is required by this act for a specified reason.

Digest Key
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: YES  

The people of the State of California do enact as follows:

SECTION 1. Section 141 of the Penal Code is amended to read:
141. (a) Except as provided in subdivisions (b) and (c), a person who knowingly, willfully, intentionally, and wrongfully alters, modifies, plants, places, manufactures, conceals, or moves any physical matter, digital image, or video recording, with specific intent that the action will result in a person being charged with a crime or with the specific intent that the physical matter will be wrongfully produced as genuine or true upon a trial, proceeding, or inquiry, is guilty of a misdemeanor.
(b) A peace officer who knowingly, willfully, intentionally, and wrongfully alters, modifies, plants, places, manufactures, conceals, or moves any physical matter, digital image, or video recording, with specific intent that the action will result in a person being charged with a crime or with the specific intent that the physical matter, digital image, or video recording will be concealed or destroyed, or fraudulently represented as the original evidence upon a trial, proceeding, or inquiry, is guilty of a felony punishable by two, three, or five years in the state prison.
(c) A prosecuting attorney who intentionally and in bad faith alters, modifies, or withholds any physical matter, digital image, video recording, or relevant exculpatory material or information, knowing that it is relevant and material to the outcome of the case, with the specific intent that the physical matter, digital image, video recording, or relevant exculpatory material or information will be concealed or destroyed, or fraudulently represented as the original evidence upon a trial, proceeding, or inquiry, is guilty of a felony punishable by imprisonment pursuant to subdivision (h) of Section 1170 for 16 months, or two or three years.
(d) This section does not preclude prosecution under both this section and any other law.
SEC. 2. No reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIII B of the California Constitution.


Under Fire: Will Los Alamitos, Orange County Prosecutors be Held Liable? 


Will Making it a Felony Curb Prosecutorial Misconduct?

Saturday, October 1, 2016

When a state’s drug chemist lies for years, should all her cases be thrown out?

When a state’s drug chemist lies for years, should all her cases be thrown out?

The Washington Post
By Tom Jackman
September 29, 2016

Before Massachusetts discovered in 2013 that one of the chemists in its state crime lab was actually using the drugs she was testing, it uncovered another chemist in 2012 who admitted she had been falsifying some of her drug testing results for more than eight years. Both chemists were arrested, pleaded guilty and served prison time.

So what should happen to the tens of thousands of cases processed by Sonja Farak, in the Amherst lab, and Annie Dookhan in the Boston lab? In Dookhan’s case from 2012, county prosecutors produced data in May of this year showing that her test results were involved in more than 24,000 convictions. The number of Farak cases has not yet been determined but is likely to be high as well. Now the American Civil Liberties Union and the Massachusetts public defender are asking that, in light of the failed “War on Drugs” and the damage these cases have already done to mostly low-level drug users, all 24,000 of the Dookhan-related convictions should be thrown out.

No way, say the prosecutors in the eight counties around Boston where Dookhan handled drug evidence. They want each case individually reviewed, in the interests of justice and the fact that Dookhan was rarely the sole source of evidence against a drug defendant. They say they have already processed about 1,500 cases from defendants who came forward after news of Dookhan’s misconduct first emerged, and there’s no need for a blanket amnesty now.

It’s another blow to the crime lab business, already reeling from federal criticism of their long-trusted sciences like bullet and tread analysis, reports of sloppy work at the FBI crime lab, and now massive misconduct by a top state chemist. And then another. In the same state.

Temperatures rose further in the Dookhan case earlier this month when the prosecutors sent out a mass form letter to the approximately 20,000 defendants in the 24,000 cases (some people had more than one case), over the ACLU state public defender’s strong objection and even after a request from the Supreme Judicial Court justice handling the case “that the letter not be sent before we have a hearing.” The letter informed defendants that they had the right to challenge their convictions and could not face any greater punishment than already received, but the ACLU said an accompanying Spanish translation was poorly done and that the lack of any official letterhead and a return address in Philadelphia did more harm than good.

The prosecutors and defense bar had been working together on the letter until May, when the government revealed that Dookhan was involved in the cases of 24,000 defendants. The defense bar called that “a jaw-dropping number” and one which made “case-by-case litigation…impossible as a practical matter” because there simply weren’t enough public defenders and court-appointed lawyers to handle 24,000 new cases, particularly as the other crime lab scandal by Farak loomed. Offering defendants an opportunity to revisit their convictions individually negated the need for a dismissal of all cases, which the ACLU public defender saw as an end-run around their court case, filed in 2014 when prosecutors were refusing to provide lists of affected “Dookhan defendants.”

So even though the Supreme Judicial Court, Massachusetts’ highest court, ruled in 2015 that a blanket dismissal of all cases was not appropriate “at this time,” the ACLU this week returned to the high court to renew their call for a “global remedy.” The defense wants all 24,000 convictions either dismissed permanently, or dismissed with the option for prosecutors to retry cases where there exists sufficient untainted evidence for another conviction. Carrie Kimball-Monahan, a spokeswoman for the Essex County district attorney, said in every case retried so far in Essex, the drug evidence was confirmed as Dookhan had tested it originally.

Dookhan misanalyzed, contaminated, or didn’t analyze, an unknown number of drug samples sent to the lab by police around eastern Massachusetts from 2003 to 2012, though her cases stopped in 2011. “It was a systemic lapse, of epic proportions,” the defense bar brief argues, “which permitted her to fabricate and falsify evidence…the unprecedented number of human beings who have been directly hurt remains shocking.” The lawyers added, “If this status quo prevails, the Dookhan crisis will come to a close by allowing thousands of tainted convictions to stand unaddressed. That is not justice.”

The state’s prosecutors believe they have been seeking justice ever since Dookhan’s misdeeds were discovered in 2012. “Individuals in society at large,” said Jake Wark, the spokesman for Suffolk County district attorney Daniel F. Conley, “are best served when any criminal cases of any type are assessed on their individual merit. This issue has essentially been decided by the state’s highest court. The CPCS [Massachusetts public defender] and the ACLU are calling it a global remedy, but it is no remedy at all.”

Kimball-Monahan said in Essex County “we went right to work to identify these people” in 2012. “The priority was those who were incarcerated,” she said. “In many cases, it was ‘time served, time served, time served.’ The trial court set up special sessions. We started handling it. The only entity dragging their feet on notifying and making a list of individuals potentially harmed was the public defender. They claim they still don’t know. They want to stop us from sending out the letters? It shows me their interest is not in protecting their people or the integrity of the system.”

Matthew Segal of the ACLU Foundation of Massachusetts, said after Dookhan was arrested in 2012, prosecutors refused to provide a list of cases she had worked on. After two years, the ACLU sued the Suffolk and Essex prosecutors in 2014 on behalf of two convicted street-level cocaine dealers and one crack user. Though the court said Suffolk and Essex then worked diligently to provide such a list, the other counties did not move so quickly, and “it was a consequence of this litigation that they generated the list” in May, Segal said, four years after the scandal erupted.

Once the defense learned how many cases were potentially affected, things changed. Most of the defendants were poor, and “the indigent defense system has no more capacity to litigate all these cases than it does to build a rocket ship and fly it to Jupiter,” the defense brief claims. The brief notes that the Committee for Public Counsel Services, the state’s public defender, already struggles to keep up with its current caseload, and takes between eight to 16 weeks to find court-appointed lawyers to handle post-conviction cases. Even if the public defender could expand its capacity by one-third and find 500 more court-appointed lawyers per year, “it would take 48 years, i.e. until 2064, to assign certified lawyers for the 24,000 cases tainted by Dookhan’s misconduct.”

The prosecutors strongly disagree. “That is either gross hyperbole or disturbing dysfunction within the defense bar,” said Wark, the Suffolk County spokesman. “There are hundreds of attorneys in public defender offices and thousands of court-appointed attorneys…A handful of state prosecutors has handled the drug lab crisis since day one. They have beaten back the entire backlog of affected cases and the small number that now trickle in are resolved in the ordinary course of business.”

Wark also noted that drug analysis certificates were far from the only evidence in drug cases. Police and witness testimony, drug buys, search warrants, surveillance and phone records are used in most cases, so that jury verdicts or decisions to plead do not rise or fall entirely on a chemist’s analysis, he said. Boston or Salem, Mass., police officers directly witnessed drug use or made drug buys from the three defendants in the pending Supreme Court case, court records show.

Statistics showed that 91 percent of the Dookhan cases were resolved in district, or lower, court, and that 62 percent involved only simple possession. In most possession cases, Wark noted that prosecutors regularly agree to plea bargains with little or no time served. But about one-quarter of the Dookhan cases were distribution cases with mandatory minimum sentences, the defense bar noted. And even with minor convictions, some defendants have been deported based on Dookhan convictions, while others have lost drivers’ licenses, housing, student loans and job opportunities. Convictions in Dookhan cases sometimes served as prior convictions for heavier sentencing in later cases. And it is not known how many people might still be incarcerated because of Dookhan evidence.

“Approximately 96 percent of the individuals who have been harmed” by the Dookhan scandal, said Benjamin Keehn of the public defender’s office, “have not had their cases addressed. Unless the Supreme Judicial Court adopts a comprehensive remedy, these individuals will never get justice.” He said his office typically handles or assigns about 1,500 post-conviction cases per year, and would be overwhelmed by 24,000 cases. “Every person harmed by this scandal deserves to receive justice,” Keehn said. “If we take the case-by-case route, they won’t.”

Dismissing the cases but allowing prosecutors to retry them would be “the opposite of a shortcut,” Wark said. “If the defense bar believes it will take 48 years to handle [now], discovery and refiling will keep them busy until the next millennium. There is a very clearly established procedure for defendants who wish to withdraw pleas or vacate their convictions. There’s no reason the defense bar can’t follow that.”

Massachusetts does not have a time limit on when a convicted defendant can return to court with a motion to withdraw their original guilty plea or seek to overturn a jury verdict. And many defendants did that when they learned through the news media of Dookhan’s malfeasance. Wark and Kimball-Monahan noted that special judges and prosecutors were detailed to handle the influx of new post-trial motions. “We weren’t crying lack of resources,” Kimball-Monahan said. “That’s our job. We used considerable resources in IT to datamine a database to identify the Dookhan cases. We provided that to them. It was prosecutors doing their job.”

But who would notify the rest of the 24,000  roughly 20,000 defendants there was a significant new development in their case, and they had a right to an appeal? The two sides differed, again. Wark said, “This is the biggest crime story in Massachusetts since the Boston Strangler. The notion that there was a convicted drug defendant that didn’t know about Dookhan, it strains credulity. Nonetheless, if notice was to be sent, it was clear that the defense bar was the appropriate entity to send it.”

Segal of the ACLU responded, “There is no world in which that is correct.” He said the Supreme Judicial Court, particularly through supervising Justice Margot Botsford, “has made it clear…that it is decidedly the responsibility of prosecutors to identify and notify people who may have been wrongfully convicted.” He said it was not the media’s job to notify defendants, “it is the prosecutor’s job to seek justice for the people it may have, even inadvertently, wrongfully convicted.”

The two sides worked together on a proposed notice letter to Dookhan defendants, saying that the defendants may be able to use appointed counsel to challenge their cases. Then in May, the lawyers learned there were 24,000 defendants  cases. At that point, the defense bar concluded that offering each defendant an opportunity to appeal individually was unrealistic, since there weren’t enough lawyers to handle them. They opposed the letter and stopped working on it. The DAs continued with the letter, deleting mention of an appointed attorney, and sent it to the defense and the justice in late August. Justice Botsford quickly emailed the prosecutors “to request that the letter not be sent before we have a hearing or in any event conversation about the letter and its relationship to the case pending before the full court,” court documents show. But the prosecutors felt they had the legal right to do so, and proceeded.

The notice is one half-page in English, and one half in Spanish, headlined, “IMPORTANT NOTICE REGARDING A CLOSED CRIMINAL CASE.” There is no letterhead or government seal. The letter states that “it has been determined that chemist Annie Dookhan tested the drugs in your case(s)…Ms. Dookhan admitted to misconduct in her work at the drug lab” and that the recipient has the right to challenge the conviction. If the challenge succeeds, “your case will be returned to active status,” the letter states, and advises the recipient to “contact your original lawyer” and for more information, contact the Suffolk County district attorney’s office. The return address on the envelope is a P.O. box in Philadelphia for the contractor who mailed the letters.

The Spanish version of the letter was more troubling to the defense bar. Michael O’Laughlin, the director of the interpreter training program at Boston University, said in an affidavit the Spanish letter was incomplete, inaccurate and filled with grammatical errors. He said it uses the Spanish word “crimen” which is a violent felony, normally a murder, though no murders are involved here. “A recipient of this notice who spoke Spanish, but not English, would have great difficulty understanding several of the sentences as translated,” O’Laughlin wrote.

“The notice that the District Attorneys have started sending out is truly awful,” Keehn of the public defender wrote in a motion seeking to have the letter stopped. He said it effectively pledged to recipients there would be public defenders available to represent them, and there were not enough lawyers. “The burdens of a systemic lapse are not to be borne by the defendants who are its victims,” he wrote.

Wark said the defense bar’s refusal to cooperate after May cost them the chance to review the translation, and “it was translated by a native Spanish speaker who didn’t learn English until she was 16.”

The high court declined to stop the prosecutors from sending the notice, but instructed them to keep copies of the letters and any responses they received. Segal said the letter irreparably damaged the process of case-by-case appeals. Wark and Kimball-Monahan said prosecutors stand ready to handle any appeals which come in. The Massachusetts Supreme Judicial Court will hear arguments from both sides in November.

NOTE: This post has been updated to note that there are 24,000 cases involving Dookhan, not 24,000 defendants, and that the public defender, not the ACLU, moved to stop the mailing of the letter to the defendants.


Tuesday, September 27, 2016

Ex-Verizon worker is accused of 'selling customer phone records' for more than four years

 Ex-Verizon worker is accused of 'selling customer phone records' for more than four years

Associated Press
Sep. 26, 2016 1:33 PM EDT

    Daniel Eugene Traeger allegedly sold customer phone records in Alabama
    Federal prosecutors said he sold information to a private investigator 
    Traeger was also accused of selling the data for more than four years

A former Verizon Wireless worker has been accused of selling customer phone records for more than four years.

Daniel Eugene Traeger, 51, who worked as a technician for the company, allegedly used Verizon's computers to obtain customers' private call records.

He was also able to obtain data showing the location of customers' phones, according to recently filed court documents.

Shortly after the charges were filed last week, Traeger pleaded guilty to a felony count of unauthorized access to a protected computer as part of a plea deal, court records show. His lawyer didn't immediately return a phone message Monday.

Traeger logged into one Verizon computer system to gain access to customers' call records, authorities said. He used another company system known as Real Time Tool to "ping" cellphones on Verizon's network to get locations of the devices, according to the plea agreement.

He then compiled the data in spreadsheets, which he sent to the private investigator for years, the court records show.

"Between April 2009 and January 2014, the defendant was paid more than $10,000 in exchange for his provision of confidential customer information and cellular location data to the PI, an unauthorized third party," court records state.

Though Traeger was based in the Birmingham area, the court records do not indicate whether the information that was sold involved Verizon Wireless customers in Alabama or elsewhere.

He faces up to five years in prison, but prosecutors are recommending a lesser sentence since he accepted responsibility, according to terms of the plea agreement.

The broader issue of protecting personal information — from cellphone records to the recent breach of Yahoo.com user accounts — has become a vexing problem for the U.S. in recent years, said Marc Rotenberg, president of the nonprofit Electronic Privacy Information Center in Washington, D.C.

"It's one of the most important, least understood issues in the current election year," Rotenberg said Monday.

Sunday, April 24, 2016

California jurors misusing the Internet could face fines

California jurors misusing the Internet could face fines

Associated Press

SAN FRANCISCO (AP) — Jurors who threaten to derail trials by researching them on Google or posting comments about them on Twitter are often dismissed with nothing more than a tongue-lashing from a judge.

But that may soon change in California. Legislation supported by state court officials would authorize judges in some counties to fine jurors up to $1,500 for social media and Internet use violations, which have led to mistrials and overturned convictions around the country.

As jurors and judges have become more technology savvy in recent years, the perils of jurors playing around with their smartphones have become a mounting concern, particularly in technology-rich California. A 2011 state law made improper electronic or wireless communication or research by a juror punishable by contempt.

Supporters of the latest California measure say a potential fine would give teeth to existing prohibitions against social media and Internet use and simplify the process for holding wayward jurors accountable.

"It's disruptive of the judicial process, and there ought to be a fairly simple and convenient way for a judge to sanction a juror based on the order that the judge has given," said Assemblyman Rich Gordon, D-Menlo Park, who authored the legislation.

But critics question whether it will have any practical effect on jurors who are constantly on sites such as Facebook and Twitter and suggest judges vet the social media activity of potential jurors before seating them.

"If you have an Internet addict who just can't psychologically stop, you may want to excuse that person," said Paula Hannaford-Agor, who studies juries at the National Center for State Courts.

Brian Walsh, a judge in the Silicon Valley county of Santa Clara, said a fine could also change the dynamic between judges and juries.

"You want to present the jurors' obligations to serve as an inviting opportunity to participate in the democratic process," he said. "One could consider it counterproductive to be laying out all the penalties a juror can incur if they blow it."

It is not clear exactly how many times juror social media or Internet use has affected trials. But anecdotal evidence suggests it is more than sporadic.

Eric Robinson, co-director of the Press Law and Democracy Project at Louisiana State University, said he used to track cases of juror social media or Internet misconduct using news accounts and other sources, but there were so many "it got to be more trouble than it was worth."

"Those are the ones we hear about," he said. "I'm sure it happens a lot more."

An Arkansas court in 2011 threw out a death row inmate's murder conviction in part because of Tweets. One said "Choices to be made. Hearts to be broken." Another said "It's over" less than hour before the jury announced its verdict.

A New Jersey appeals court in 2014 tossed the heroin possession conviction of two men after a juror was accused of searching the defendants' names online and finding information about their criminal records.

A California appeals court in January cited juror Internet research in throwing out a fraud conviction against an investment firm CEO. The juror looked up a case involving an accountant the defendant blamed for the fraud.

Judges warn jurors against using social media and the Internet, and have the power to hold them in contempt if they violate those rules.

Greg Hurley, a lawyer who studies juries at the National Center for State Courts, said he is unaware of any state that fines jurors outside the contempt process.

California judges say the contempt process can be time consuming and is rarely invoked. A juror facing contempt has a right to an attorney, and the court could get bogged down in a lengthy formal hearing. So judges often opt to replace a wayward juror with an alternate to keep the proceedings moving.

"Historically, contempt has been something judges are told, 'Don't do,'" said J. Richard Couzens, a retired judge from California's Placer County who now rotates through courts around the state. "You have to follow so many rules to institute a contempt process."

Couzens, a member of the judicial committee that recommended the fines legislation, said he dismissed a juror years ago in a theft case for using a cellphone to figure out the value of a stolen item.

The fine would be similar to a traffic citation, making it relatively easy to dispense, Couzens said.

Judges could mention it when warning jurors against Internet and social media use, said Steve Austin, presiding judge in California's Contra Costa County.

"At the very least with the sanction, it would be a good thing you'd be able to tell the jurors," he added.

The legislation initially called for giving all state judges the power to fine wayward jurors. But it was scaled back after legislators expressed concern that it could dissuade potential jurors from serving.

The bill now authorizes the judiciary to select some county courts for a five-year pilot program, which a legislative analysis said could save participating courts money. It is before the full assembly.

Thursday, April 21, 2016

Suspension of licenses sought for investigators in Costa Mesa case

Suspension of licenses sought for investigators in Costa Mesa case

Los Angeles Times
Jeremiah Dobruck
January 18, 2015

State prosecutors want two private eyes accused of tailing and trying to embarrass two Costa Mesa councilmen before the 2012 city elections to have their licenses suspended as they await trial.

The investigators, Chris Lanzillo and Scott Impola, appeared in Orange County Superior Court this week, but did not enter pleas on charges of felony conspiracy and false imprisonment.

Prosecutors say Lanzillo and Impola were hired by the Costa Mesa police union to dig up dirt on political opponents. The Costa Mesa Police Assn. has said its members had no knowledge of the alleged unlawful activity until after the fact and then quickly fired the law firm where the two investigators worked.

Lanzillo and Impola are each free on $25,000 bond. But the state attorney general's office has asked that as a condition of their bail, an Orange County judge suspend their state licenses to work in the private security industry and to carry firearms and batons on the job.

According to prosecutors, Lanzillo and Impola used a GPS device to track Councilman Steve Mensinger and phoned in a false report while tailing Councilman Jim Righeimer.

A Costa Mesa police officer responded to Righeimer's home, where the councilman took and passed a sobriety test. The incident sparked the charge of false imprisonment, according to the Orange County district attorney's office.

"Their false imprisonment of another person reflects a blatant violation of that person's personal liberty," the attorney general office's filing states. "Their choice to place a GPS device on someone's vehicle reflects a deliberate invasion of privacy. In short, one who commits such acts cannot be trusted to do business with unsuspecting consumers."

Lanzillo has a private investigator's license, and Impola is licensed to operate a private security patrol, according to online records.

Deputy Atty. Gen. Adrian Contreras said the requested suspensions wouldn't affect any local permits that Lanzillo or Impola may have to carry weapons.

Lawyers for the defendants have opposed the suspension request.

"Lanzillo is not a danger to anybody," said Nancy Kardon, one of his attorneys.

Impola's lawyer, David Vaughn, argued in court papers that the charges against his client involve nonviolent conduct and could have been charged as misdemeanors instead of felonies.

A hearing on the license suspension request is scheduled Feb. 6. The defendants' arraignment was rescheduled for that date.

Superior Court judges have authorized restraining orders on Lanzillo and Impola. Both are barred from contacting Righeimer and Mensinger or visiting Skosh Monahan's, a restaurant owned by Councilman Gary Monahan where the private investigators allegedly began tailing the politicians.

State appellate court hears arguments in case involving Costa Mesa councilmen

State appellate court hears arguments in case involving Costa Mesa councilmen

Los Angeles Times / Daily Pilot
Bradley Zint
February 19, 2016

A state appellate court heard arguments Friday in an ongoing lawsuit accusing the Costa Mesa Police Assn., its former law firm and a private investigator of conspiring against two Costa Mesa councilmen.

Attorney Andrew Chang argued that the police union, the firm Lackie, Dammeier, McGill and Ethir, and investigator Chris Lanzillo, were "masterminds" in a scheme to implicate the councilmen during the 2012 election.

Chang represents Costa Mesa Mayor Steve Mensinger, Mayor Pro Tem Jim Righeimer and Righeimer's wife, Lene.

Their case accuses Lanzillo, a former Riverside police detective working for the now-dissolved law firm, of falsely reporting to police that Righeimer — considered an adversary to the union for his tough stances on pension reform — was driving drunk. Lanzillo made the call after he saw Righeimer leave Councilman Gary Monahan's bar and restaurant in August 2012.

A Costa Mesa police officer administered a field sobriety test, and Righeimer passed.

"This was a setup," Chang told associate justices William Rylaarsdam, Eileen Moore and David Thompson of the 4th District Court of Appeal in Santa Ana. "This was not someone happening to see someone stumble out of a bar."

Chang and the councilmen's other attorneys have argued that Lanzillo's 911 call is not protected speech — Lanzillo's counsel has argued otherwise — and that his invoking of the 5th Amendment right against self-incrimination more than 200 times during a three-hour deposition in 2014 amounted to a no-contest plea.

Chang contended that the police union and law firm were "all involved" in the conspiracy, which also included Lanzillo's reported coordination with a woman tasked with flirting with Monahan, a political ally of Righeimer and Mensinger, that evening to see if he would behave inappropriately.

Chang contended that the police union was paying for the questionable actions of the law firm, to which Thompson replied, "People pay their lawyers after they hire them, don't they?"

Attorney Sy Everett, who represents the Costa Mesa Police Assn., told the justices that the association never had advance knowledge of the tactics and quickly fired Lackie Dammeier after news of the DUI call surfaced.

The union had "nothing to do" with Lanzillo's call, he said.

Everett added that the association's hiring of Lackie Dammeier, which represented many law enforcement agencies, was certainly within its First Amendment rights.

"You have the right to hire a lawyer to petition on your behalf," Everett said.

The association has also alleged that the lawsuit is an attempt to restrict its members' right to protected political speech. As such, Everett added, the Costa Mesa police union shouldn't be held liable for any allegations levied against the firm or Lanzillo, whom he called "twice removed" from the association.

Everett called the councilmen's case a "strategic lawsuit filed for the benefit of politicians."

Justice Rylaarsdam responded that it's "regretful" if the lawsuit's allegations were, as Everett attested, politically motivated.

"I don't think it speaks well for our political society," Rylaarsdam said, "if that's how you go about it."

Stephen Larson, counsel for Lanzillo and Lackie Dammeier, told the justices that the councilmen have not presented any evidence proving the 911 call was knowingly false.

He also contended that Lanzillo's taking of the Fifth Amendment doesn't imply guilt.

Like Everett, Larson called Righeimer and Mensinger's case "a political effort," to which Rylaarsdam replied, "To justify this as a political effort is pretty sad."

The case, first filed in 2013, was moved up to the appellate court the following year after the police association's motions to dismiss it altogether — on the basis of the union's actions being considered free speech — were denied by a Superior Court judge. The association then appealed the denial.

The justices are expected to issue a ruling within 90 days. If they deny the case's dismissal, all parties can proceed with discovery and it could go to a trial.

A separate criminal case against Lanzillo and an alleged accomplice, Scott Impola, is ongoing. The pair is facing various felony charges, including some in connection to placing a GPS device on Mensinger's vehicle to illegally track his movements.

Thursday, January 7, 2016

Attorney in 'Making a Murderer' crosshairs admits errors but defends work

Attorney in 'Making a Murderer' crosshairs admits errors but defends work

Milwaukee Journal Sentinel
By Bruce Vielmetti   
Jan. 6, 2016

The world — or at least the millions of people who've watched "Making a Murderer" — hates Leonard Kachinsky.

In the hit Netflix series about Steven Avery's sensational 2005 Wisconsin murder case, Kachinsky's representation of Avery's nephew, Brendan Dassey, comes off as one of the bigger incompetencies and injustices in a story spun as a massive conspiracy to frame Avery.

But Kachinsky, 62, doesn't much care. The semiretired Appleton lawyer and Army veteran is battling leukemia and doesn't seem to want to expend what time and energy he has left responding to his now many critics.

"I was considering the possibility of suing Netflix for false light and slander," he said. "But those suits tend to eat up time and put money in lawyers' pockets."

Kachinsky said he hasn't watched the 10-part documentary and doubts he will.

"Given the comments, people are going off the handle, blaming me for Dassey being in prison, ruining his life," he said. "I may have subjected him to a rough private investigator, and some low-level emotional stress," but no more.

Like most all the players in the show, he said he's been inundated with phone calls since the series was released Dec. 18. He says he mostly ignores any calls from numbers from outside Wisconsin, knowing the callers probably just want to rip him. He also ignores about a dozen Facebook friend requests a day for the same reason, though he does see a few mentions of him on Twitter that friends email to him.

He does concede to making errors in the case, and accepted professional sanctions that resulted. He disputes, though, that in the end, those missteps had much of an impact on the outcome for Dassey or Avery.

Teresa Halbach murder

Avery, of course, had made news in 2003 when he was released after 18 years in prison for a rape he didn't commit. Two years later, while his civil rights case against Manitowoc County officials was pending, he was charged in the gruesome murder of Teresa Halbach, 25, a photographer for a car sales magazine.

In March 2006, authorities questioned Dassey, Avery's 16-year-old nephew, who confessed to helping Avery rape and kill Halbach. Kachinsky, who had recently lost in a bid to be elected judge, was appointed to represent Dassey.

Kachinsky says that as soon as Dassey talked to police, he began to get pressure from his family not to testify against Avery. Kachinsky tried to get Dassey's confession suppressed, but the judge ruled it admissible.

What happened next is what put Kachinsky in viewers' crosshairs.

Kachinsky thought the best option for Dassey was to cooperate, and perhaps be spared a life sentence. His private investigator, Michael O'Kelly, visited Dassey in jail on a Friday night and got him to again confess to the gruesome details he had first told police in March and videotaped the session.

The very next day, police again interviewed Dassey, who again admitted to his role in Halbach's death.

Kachinsky wasn't present at either session. He said he had mandatory training with the Army Reserve out of town that weekend. In retrospect, he says, allowing the interviews was a mistake, as was hiring O'Kelly, whom Kachinsky called "a loose cannon."

"Making a Murderer" utilizes the O'Kelly interview to great effect, suggesting he manipulated Dassey more than detectives did in their interrogations. Kachinsky said he didn't even know there was video until Dassey's post-conviction attorneys got ahold of it. It was never used at Dassey's trial.

Kachinsky was removed as Dassey's attorney in August 2006. The Court of Appeals upheld Dassey's conviction, rejecting his claims that his initial confession was involuntary, and that Kachinsky and, later, his trial attorneys were ineffective. The state Supreme Court declined to review the case.

The State Public Defender decertified Kachinsky from taking homicide cases after it learned of the O'Kelly interview and filed a complaint with the Office of Lawyer Regulation. He said he agreed to take additional training and meet other conditions for a year as part of an alternative to discipline.

Lawyers at Northwestern University law school now represent Dassey on a federal habeas corpus petition in Milwaukee federal court, pending before Magistrate Judge William E. Duffin. The suit seeks Dassey's release and review of whether he was wrongly convicted.

Meanwhile, Kachinsky says he will continue some limited law practice and his work as a municipal court judge for Menasha. He said he's living on his military pension and applying for Social Security disability.

 ARTICLE: Attorney in 'Making a Murderer' crosshairs admits errors but defends work