Sunday, August 31, 2014

Jeff Duffett was wrongfully convicted.

Jeff Duffett was wrongfully convicted thrugh the improper use of propensity evidence admitted under Evidence Code section 1108.

In 2008, he was accused of molesting his ex girlfriend's daughter, Alyssa, 10 years earlier. The full story can be found at This blog concentrates solely on the use of propensity evidence and its effect on the trial.

With one victim who had a motive to lie and who changed her story every time she told it, and another victim that denied anything ever happened, it should have been the world's shortest trial.

However, Jeff, had a prior conviction for possession of child pornography, which was introduced under Evidence Code Section 1108 to show that he had a propensity to commit such crimes.

The defense attempted to present rebuttal evidence in order to show the circumstances surrounding the conviction. His possession of the pornography was due to his job as a criminal defense investigator, not for a sexual purpose, and therefore did not show a propensity to commit the charged crimes.

However, the trial court ruled the defense was not allowed to present any rebuttal evidence, stating that the only relevant fact was the fact of the conviction.

After his conviction the jurrors told his defense attorney that they had credibility issues with both the victims. The prior was a major factor in their decision to convict him.

When told of the defenses proposed rebuttal evidence, most of the jurors, including the fore person, stated that if they had heard that evidence it likely would have made a difference in their decision.

A defendant's right to present rebuttal evidence to propensity evidence submitted by the prosecution is well established.

Jeff's attorney, Deputy Public Defender, Linda Petrovich, had rock solid precedent showing this and should have enlightened the Court, but she seemed unaware of the various Appellate Court rulings that supported her position exactly.

The first one to bring up the fact that Judge Tierbach's rulings were in direct contravention of the various rulings of the higher courts was Jeff's Appellate attorney, Tonja R. Torres.

Unfortunately, she managed to misquote the law in her appeal brief in a way that seriously weakened the her argument that he should have been allowed to present rebuttal evidence at trial.

Then, Judge McKinster, Judge Richli, and Presiding Judge Ramirez over in the Fourth Appellate District Court, Division Two, used the misquotation to explain why the case didn't apply.

They upheld the trial court's ruling, stating that allowing him to present evidence that his possession of the porn was for a non-sexual purpose would fly in the face of section 1108.

I must admit, I am not an attorney, but doesn't a Court's ruling have to be based on actual law and not something an attorney made up in some brief?

Certainly the feds would straighten this out, right?

 Not so. The honorable Judge R. Gary Klausner recently ruled that they must give deference to the state court's interpretation of the law and that since he couldn't show, based on any state court precedent, that he could have convinced the judge to admit the rebuttal evidence, his petition for writ of habeas corpus was denied.

But the fact is that he could absolutely show that state court president allows a defendant to present rebuttal evidence to propensity evidence submitted by the prosecution. State court precedent specifically allows the defense to present rebuttal evidence to propensity evidence introduced by the prosecution.

Now its on to the 9th Circuit.

If you want to contact me, my email is scott.allan.westen(at)