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 Jeff.duffett@blogspot.com. 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)gmail.com.
Sunday, August 31, 2014
Sunday, August 24, 2014
Trial - Prosecution Summary
The trial commenced in Riverside County Superior Court, case RIF147001. The Honorable Christian F. Thierbach, presiding.
The prosecution presented 6 witnesses.
Alyssa testified that Jeff touched her. Her story changed on a number of points and she fell apart on cross examination.
One of the funiest parts of the whole trial was on redirect by Deputy DA, Alan Smith.
Time after time, Alyssa was confronted with the fact that what she had just testified to wasn't what she had said before.
When she tried to claim that her story hadn't changed, Jeff's attorney, Linda Petrovitch, would whip out the transcripts and ask if she would like to refresh her memory, before forcing her to admit her story had changed.
On cross, Smith asked if she had had a chance to read the transcripts before testifying? No. Was she even aware there were transcripts? No.
As if that would explain it all away. "Gee, you can't possibly expect her to remember what she said 2 years ago without looking at the transcripts, can you?"
Here's a news flash for you Smith; People who tell the truth don't need to read the transcripts of what they said before!
Can you remember where you were on 9/11/01 when the planes hit the twin towers without looking at transcripts of what you said before? Of course you can.
Ashlee also testified about being touched, but was forced to admit she said it all might have been a dream.
She initally tried to deny it, but out came those pesky transcripts.
Ashlee also changed a key part of her story.
She originally told the DA's office that Jeff touched her vagina while they were all in bed for the night to sleep. (Which would be Michael Jackson creepy)
The defense subpoenaed Jeff's then girlfriend to testify that Jeff did not sleep with the girls. He slept with her in a separate room.
Either because she was warned there was a witness to contradict her story, or because she suffers from a bad memory and she can't remember what she said before, she testified that Jeff touched her while she pretended to be asleep.
Petrovice forced her to admit that her story changed, but didn't follow up by asking why she would pretending to be asleep? Or if Destiny, who was right there in the same bed, was also pretending to be asleep?
I will eventually post a detailed analysis of their testimony, but the main purpose of this blog isn't to show that Alyssa and Ashlee were lying. The jurrors themselves stated on the record that they had credibility issues with both Alyssa and Ashlee's stories.
This blog is to show that Jeff did not get a fair trial.
He was not allowed to present a defense whem the jury wad told that Jeff had a prior for possession of child pornography and therefor had a propensity to molest children.
That is the ONLY reason he was convicted.
Witness 2 was Kathie. She was
asked if she had any motive to lie about this whole thing, she claimed to hold no hard feelings against Jeff.
Later, when asked if she had recently been talking to Alyssa about Jeff when this all came about, she said "No, his name is not to be spoken in my house." Which kind of sounds like there were some hard feelings.
Then she got caught lying about Alyssa's grades dropping after Jeff got out of prison. Turns out that she made that whole thing up.
Witness 4 was Ashlee's mom, Kimberly. She testified that due to her heavy drug use, she can't remember back that far.
She claimed not even to have talked to Ashlee about what happened, even though Ashlee told the police that she had.
Witness 5, Destiny, testified that she was never touched sexually by Jeff.
She also didn't support Ashley's claims of being touched on the trip to Jeff's house to swim. She was there the whole time and didn't see a thing.
She too claimed some memory issues due to some antidepressants she was prescribed.
Witness 6, Jackie, was the last to testify. She was the world's fastest witness. Up there just long enough to claim that she too has memory problems due to a medical condition.
Jeff states that if their memories were in tact, they would all be forced to testify that both Alyssa and Ashlee never showed any reluctance to be around him. That, in fact, the were always excited to see him and would come running out the door to meet him in the driveway when he pulled up.
He denies touching them in a sexual way and is still very hurt at the accusation.
The prosecution presented 6 witnesses.
Alyssa testified that Jeff touched her. Her story changed on a number of points and she fell apart on cross examination.
One of the funiest parts of the whole trial was on redirect by Deputy DA, Alan Smith.
Time after time, Alyssa was confronted with the fact that what she had just testified to wasn't what she had said before.
When she tried to claim that her story hadn't changed, Jeff's attorney, Linda Petrovitch, would whip out the transcripts and ask if she would like to refresh her memory, before forcing her to admit her story had changed.
On cross, Smith asked if she had had a chance to read the transcripts before testifying? No. Was she even aware there were transcripts? No.
As if that would explain it all away. "Gee, you can't possibly expect her to remember what she said 2 years ago without looking at the transcripts, can you?"
Here's a news flash for you Smith; People who tell the truth don't need to read the transcripts of what they said before!
Can you remember where you were on 9/11/01 when the planes hit the twin towers without looking at transcripts of what you said before? Of course you can.
Ashlee also testified about being touched, but was forced to admit she said it all might have been a dream.
She initally tried to deny it, but out came those pesky transcripts.
Ashlee also changed a key part of her story.
She originally told the DA's office that Jeff touched her vagina while they were all in bed for the night to sleep. (Which would be Michael Jackson creepy)
The defense subpoenaed Jeff's then girlfriend to testify that Jeff did not sleep with the girls. He slept with her in a separate room.
Either because she was warned there was a witness to contradict her story, or because she suffers from a bad memory and she can't remember what she said before, she testified that Jeff touched her while she pretended to be asleep.
Petrovice forced her to admit that her story changed, but didn't follow up by asking why she would pretending to be asleep? Or if Destiny, who was right there in the same bed, was also pretending to be asleep?
I will eventually post a detailed analysis of their testimony, but the main purpose of this blog isn't to show that Alyssa and Ashlee were lying. The jurrors themselves stated on the record that they had credibility issues with both Alyssa and Ashlee's stories.
This blog is to show that Jeff did not get a fair trial.
He was not allowed to present a defense whem the jury wad told that Jeff had a prior for possession of child pornography and therefor had a propensity to molest children.
That is the ONLY reason he was convicted.
Witness 2 was Kathie. She was
asked if she had any motive to lie about this whole thing, she claimed to hold no hard feelings against Jeff.
Later, when asked if she had recently been talking to Alyssa about Jeff when this all came about, she said "No, his name is not to be spoken in my house." Which kind of sounds like there were some hard feelings.
Then she got caught lying about Alyssa's grades dropping after Jeff got out of prison. Turns out that she made that whole thing up.
Witness 4 was Ashlee's mom, Kimberly. She testified that due to her heavy drug use, she can't remember back that far.
She claimed not even to have talked to Ashlee about what happened, even though Ashlee told the police that she had.
Witness 5, Destiny, testified that she was never touched sexually by Jeff.
She also didn't support Ashley's claims of being touched on the trip to Jeff's house to swim. She was there the whole time and didn't see a thing.
She too claimed some memory issues due to some antidepressants she was prescribed.
Witness 6, Jackie, was the last to testify. She was the world's fastest witness. Up there just long enough to claim that she too has memory problems due to a medical condition.
Jeff states that if their memories were in tact, they would all be forced to testify that both Alyssa and Ashlee never showed any reluctance to be around him. That, in fact, the were always excited to see him and would come running out the door to meet him in the driveway when he pulled up.
He denies touching them in a sexual way and is still very hurt at the accusation.
Trial - Defense Summary
The alleged victim's stories were a mess.
Without the prior conviction, the chance of a guilty verdict would be near zero.
The defense had only to show that Jeff's prior conviction for possession for child pornography was due to his job and did not mean that he had a propensity to molest children.
To do that they had 3 witnesses.
1) U.S. Secret Service Agent Mike Adams. - He was actually called by the prosecution to testify about what the porn in question contained.
However, if the porn wasn't possessed for a sexual purpose, it would not show that Jeff had a propensity to molest children.
The deputy DA, Allan Smith, stated that he has viewed pictures of naked children. I bet that the judge, clerk, bailiff, and defense attorney have all possessed and viewed child pornography throughout the course of their job.
Why then, when Jeff views it during the course of his job, does it mean he has a propensity to molest children?
Because he was accused? What if Smith is someday accused? Would his statement then show a propensity to molest children?
The defense would use Adams to show that the porn in question was a small number of images, downloaded over a very short period of time.
There was also no evidence that one expects to find with pedophiles.
There were no emails or contact with pedophiles or attempts to contact children.
He didn't trade the images with others or visit websites or newsgroups where pedophiles gather.
His criminal history, which goes back a long way, shows nothing of a sexual nature.
2) An LAPD Detective who previously searched Jeff's computers.
Jeff's computers were seized and searched in November, 2001. No porn of any kind was found.
Smith stated in his closing that Jeff molested the girls because there was no "internet connect fee here," implying that Jeff graduated from collecting child pornography, to actually molesting children.
This is demonstraby false.
Both Alyssa and Ashlee claim all the touching occurred prior to September, 2001.
In November, 2001 his computers were searched and no porn of any kind was found.
It was only after getting a job as a sex crimes investigator that the porn was discovered on his computer.
3) Attorney Jeffrey Scott Yanuck, the attorney Jeff worked for.
He would have testified, albeit unwillingly, that he employed Jeff at that time and that they did work on sex crimes.
Jeff claims that the reason he didn't have any porn on his computer in 2001 and then did in 2002 was because his job as an investigator was the sole reason for possessing it.
This would have given the jury a nonsexual explanation for his possession of the porn and would have led to a not guilty verdict.
We know this is the case because the jurrors themselves said so after the trial.
Without the prior conviction, the chance of a guilty verdict would be near zero.
The defense had only to show that Jeff's prior conviction for possession for child pornography was due to his job and did not mean that he had a propensity to molest children.
To do that they had 3 witnesses.
1) U.S. Secret Service Agent Mike Adams. - He was actually called by the prosecution to testify about what the porn in question contained.
However, if the porn wasn't possessed for a sexual purpose, it would not show that Jeff had a propensity to molest children.
The deputy DA, Allan Smith, stated that he has viewed pictures of naked children. I bet that the judge, clerk, bailiff, and defense attorney have all possessed and viewed child pornography throughout the course of their job.
Why then, when Jeff views it during the course of his job, does it mean he has a propensity to molest children?
Because he was accused? What if Smith is someday accused? Would his statement then show a propensity to molest children?
The defense would use Adams to show that the porn in question was a small number of images, downloaded over a very short period of time.
There was also no evidence that one expects to find with pedophiles.
There were no emails or contact with pedophiles or attempts to contact children.
He didn't trade the images with others or visit websites or newsgroups where pedophiles gather.
His criminal history, which goes back a long way, shows nothing of a sexual nature.
2) An LAPD Detective who previously searched Jeff's computers.
Jeff's computers were seized and searched in November, 2001. No porn of any kind was found.
Smith stated in his closing that Jeff molested the girls because there was no "internet connect fee here," implying that Jeff graduated from collecting child pornography, to actually molesting children.
This is demonstraby false.
Both Alyssa and Ashlee claim all the touching occurred prior to September, 2001.
In November, 2001 his computers were searched and no porn of any kind was found.
It was only after getting a job as a sex crimes investigator that the porn was discovered on his computer.
3) Attorney Jeffrey Scott Yanuck, the attorney Jeff worked for.
He would have testified, albeit unwillingly, that he employed Jeff at that time and that they did work on sex crimes.
Jeff claims that the reason he didn't have any porn on his computer in 2001 and then did in 2002 was because his job as an investigator was the sole reason for possessing it.
This would have given the jury a nonsexual explanation for his possession of the porn and would have led to a not guilty verdict.
We know this is the case because the jurrors themselves said so after the trial.
Saturday, August 23, 2014
Trial Court Error 1 - Judge misquotes the law
The HONORABLE CHRISTIAN F.
THIERBACH, doesn't seem to be all that familiar with the law regarding propensity evidence.
He admitted the prior to show that if Jeff touched the girls, he did so with the intent of sexual gratification of himself.
It was then used to show that Jeff had propensity to molest children instead.
While discussing the admissibility of the prior, he stated:
"But under a 352 analysis, is the evidence so prejudicial as to outweigh the probative value? And in cases such as this where the intent is an issue, it is highly probative.
...The Prosecution is required to prove the specific intent.
That is a core element of these charges. And the legislature has authorized them to do so by introducing evidence pursuant to Section 1108 and 452.5."
However, 1108 allows for the introduction of propensity evidence, not evidence of intent.
Intent evidence is admitted under 1101.
The judge clearly states that he is admitting it because the DA must prove the spefic intent.
He does an analysis under 352, finding that the probative value of the prior out weighed the prejudicial effect.
However, it actually had no probative value to show intent because it was never used as such.
The DA used it to show propensity, a purpose for which it was never admitted.
It wasn't needed to show intent. You don't need a prior to prove that touching a little girls vagina was sexual.
If Ashlee or Alyssa's testimony had been credible, no jurror was going to say "Well, sure he spread her vagina open, they proved that. But I'm going to vote not guilty because they didn't prove he did it for a sexual reason.'
THIERBACH, doesn't seem to be all that familiar with the law regarding propensity evidence.
He admitted the prior to show that if Jeff touched the girls, he did so with the intent of sexual gratification of himself.
It was then used to show that Jeff had propensity to molest children instead.
While discussing the admissibility of the prior, he stated:
"But under a 352 analysis, is the evidence so prejudicial as to outweigh the probative value? And in cases such as this where the intent is an issue, it is highly probative.
...The Prosecution is required to prove the specific intent.
That is a core element of these charges. And the legislature has authorized them to do so by introducing evidence pursuant to Section 1108 and 452.5."
However, 1108 allows for the introduction of propensity evidence, not evidence of intent.
Intent evidence is admitted under 1101.
The judge clearly states that he is admitting it because the DA must prove the spefic intent.
He does an analysis under 352, finding that the probative value of the prior out weighed the prejudicial effect.
However, it actually had no probative value to show intent because it was never used as such.
The DA used it to show propensity, a purpose for which it was never admitted.
It wasn't needed to show intent. You don't need a prior to prove that touching a little girls vagina was sexual.
If Ashlee or Alyssa's testimony had been credible, no jurror was going to say "Well, sure he spread her vagina open, they proved that. But I'm going to vote not guilty because they didn't prove he did it for a sexual reason.'
Trial Court Error 2 - Lack of 352 analysis before admitting prior
Prior convictions are not automatically admissable as either intent or propensity evidence. They are subject to exclusion under Evidence Code Section 352.
As the Supreme Court stated in People v Falsetta 21 Cal.4th 903, "Rather than admit or exclude every sex offense a defendant commits, trial judges must consider such factors as its nature, relevance, and possible remoteness, the degree of certainty of its commission and the likelihood of confusing, misleading, or distracting the jurors from their main inquiry, its similarity to the charged offense, its likely prejudicial impact on the jurors, the burden on the defendant in defending against the uncharged offense, and the availability of less prejudicial alternatives to its outright admission, such as admitting some but not all of the defendant's other sex offenses, or excluding irrelevant though inflammatory details surrounding the offense."
In ruling, the court stated: "Well, if it's an objection, overrule it. If it's a motion to suppress that evidence, that would be
denied because the Court concludes that the probative value is not outweighed by the prejudicial effect."
That was the only analysis that was done.
Later, at sentencing, the Court also makes a statement that sounds like he believes all priors are admissible if there was a guilty plea.
"THE COURT: All right. In this motion, you're asking me to conclude that I committed error
by allowing the testimony in. We had the same argument pretrial, and I'm -- I am certainly the first to admit when I make mistakes. But I don't believe I made a mistake here.
I didn't create Evidence Code Section 1109; the state legislature did.
(Again he misquotes the section. It's 1108)
It's a highly prejudicial piece of legislation, in terms of being a criminal defendant charged with this type of crime, but it's there.
It's been declared constitutional by the highest court in the state. It is -- Sure, there's that catch-all language in there "except as
otherwise provided by law," specifically meaning Section 352 of the Evidence Code.
(That "catch all" language is what is supposed to protect people from being wrongfully convicted)
MS. PETROVICH: Sure.
THE COURT: This stuff comes in. And on its face, it says "propensity evidence."
That's what the instruction says. You know, I may not like it
personally, but that's not my job. My job is to follow the law, and I took an oath to do that.
As painful as it is with defendants charged with these types of crimes, it is the law.
But more troubling is that your argument once again in the testimony of this attorney Yanuck
would somehow provided exculpatory evidence for the
defendant, it's absolutely wrong. I can't put it any stronger than that.
There's just no ignoring the fact that Mr. Duffett pleaded guilty to the charge in federal court in Nevada.
And, what, in essence, you wanted to do was try to litigate that to show that in fact he was
innocent.
(Again, it was absolutely not what he was trying to do)
He pleaded guilty. That's
what came in. You didn't
represent him. I wasn't there. He was represented by counsel.
He was sentenced to six-and-a-half years in federal prison, which he served -- or at least most of it until he was paroled.
But there's no getting around that. He pleaded guilty to that offense. And the testimony of Yanuck, or anyone else, is irrelevant. He pleaded guilty. That's how the conviction came about.
So the Court, in examining the record, I find no statutory or nonstatutory basis to support the granting of a motion for a new trial, and the motion would be denied"
The court admitted the prior based solely on the fact he was convicted.
This would have been a perfect time for his attorney to whip out People v. Callahan.
As the Supreme Court stated in People v Falsetta 21 Cal.4th 903, "Rather than admit or exclude every sex offense a defendant commits, trial judges must consider such factors as its nature, relevance, and possible remoteness, the degree of certainty of its commission and the likelihood of confusing, misleading, or distracting the jurors from their main inquiry, its similarity to the charged offense, its likely prejudicial impact on the jurors, the burden on the defendant in defending against the uncharged offense, and the availability of less prejudicial alternatives to its outright admission, such as admitting some but not all of the defendant's other sex offenses, or excluding irrelevant though inflammatory details surrounding the offense."
In ruling, the court stated: "Well, if it's an objection, overrule it. If it's a motion to suppress that evidence, that would be
denied because the Court concludes that the probative value is not outweighed by the prejudicial effect."
That was the only analysis that was done.
Later, at sentencing, the Court also makes a statement that sounds like he believes all priors are admissible if there was a guilty plea.
"THE COURT: All right. In this motion, you're asking me to conclude that I committed error
by allowing the testimony in. We had the same argument pretrial, and I'm -- I am certainly the first to admit when I make mistakes. But I don't believe I made a mistake here.
I didn't create Evidence Code Section 1109; the state legislature did.
(Again he misquotes the section. It's 1108)
It's a highly prejudicial piece of legislation, in terms of being a criminal defendant charged with this type of crime, but it's there.
It's been declared constitutional by the highest court in the state. It is -- Sure, there's that catch-all language in there "except as
otherwise provided by law," specifically meaning Section 352 of the Evidence Code.
(That "catch all" language is what is supposed to protect people from being wrongfully convicted)
MS. PETROVICH: Sure.
THE COURT: This stuff comes in. And on its face, it says "propensity evidence."
That's what the instruction says. You know, I may not like it
personally, but that's not my job. My job is to follow the law, and I took an oath to do that.
As painful as it is with defendants charged with these types of crimes, it is the law.
But more troubling is that your argument once again in the testimony of this attorney Yanuck
would somehow provided exculpatory evidence for the
defendant, it's absolutely wrong. I can't put it any stronger than that.
There's just no ignoring the fact that Mr. Duffett pleaded guilty to the charge in federal court in Nevada.
And, what, in essence, you wanted to do was try to litigate that to show that in fact he was
innocent.
(Again, it was absolutely not what he was trying to do)
He pleaded guilty. That's
what came in. You didn't
represent him. I wasn't there. He was represented by counsel.
He was sentenced to six-and-a-half years in federal prison, which he served -- or at least most of it until he was paroled.
But there's no getting around that. He pleaded guilty to that offense. And the testimony of Yanuck, or anyone else, is irrelevant. He pleaded guilty. That's how the conviction came about.
So the Court, in examining the record, I find no statutory or nonstatutory basis to support the granting of a motion for a new trial, and the motion would be denied"
The court admitted the prior based solely on the fact he was convicted.
This would have been a perfect time for his attorney to whip out People v. Callahan.
Trial Court Error 3 - The prior was cumulative
Even if the prior was admissable under 1101, to prove intent as the judge indicated, it still should have been excluded because it was cumulative.
Admission of other crimes evidence cannot be justified merely by asserting an admissible purpose; such evidence may only be admitted if it (1) tends logically, naturally and by reasonable inference to prove the issue upon which it is offered, (2) is offered upon an issue which will ultimately prove to be material to the People's case, and (3) is not merely cumulative with respect to other evidence which the People may use to prove the same issue. People v. Lopez, 198 Cal. App. 4th 698 (2011).
Here, the testimony of the two alleged victims, if the jury believed them, would be evidence of sexual intent.
The prior would have been cumulative and therefore not admissable.
Admission of other crimes evidence cannot be justified merely by asserting an admissible purpose; such evidence may only be admitted if it (1) tends logically, naturally and by reasonable inference to prove the issue upon which it is offered, (2) is offered upon an issue which will ultimately prove to be material to the People's case, and (3) is not merely cumulative with respect to other evidence which the People may use to prove the same issue. People v. Lopez, 198 Cal. App. 4th 698 (2011).
Here, the testimony of the two alleged victims, if the jury believed them, would be evidence of sexual intent.
The prior would have been cumulative and therefore not admissable.
Friday, August 22, 2014
Trial Court Error 4 - Misunderstood the defense's argument
Defense attorney, Linda Petrovich, made an attempt to get the witness testimony admitted to explain the circumstances surrounding the prior conviction, but the judge misunderstood her argument.
MS. PETROVICH: "Well, I have an objection regarding the whole 1108 issue. But
notwithstanding that, maybe Mr. Yanuck
would testify -- it's not that he would
be offering testimony to
somehow defend against that conviction, but ... Here's how I see
it: I mean, the whole purpose behind
Mr. Smith trying to get in the possession of the
pornography is to show that he had some interest in children or some intent to molest. So the purpose of having Mr. Yanuck come in is that Mr. Yanuck would beable to testify that he had hired Mr. Duffett -- strange as this sounds, it is true -- to perform some work for him in a criminal investigative sense on a pedophilia cases. Yanuck would not come in and say, I authorized him to download child pornography. However, he would be able to offer that he did have a
paid working relationship with Mr.
Duffett in the investigation of pedophilia for Mr. Yanuck's office."
But a number of times, the judge says things like "There's just no getting around the fact that Mr. Duffett pleaded guilty to the charge in federal court in Nevada and what, in essence, you wanted to do was relitigate to show that he was in fact innocent."
Petrovich tried again, in her motion for a new trial, to explain that the witnesses were to rebut the propensity evidence and offer the jury a non-sexual explanation for the conviction, but the judge kept saying she was trying to relitigate the conviction and excluded the witnesses for that purpose.
MS. PETROVICH: "Well, I have an objection regarding the whole 1108 issue. But
notwithstanding that, maybe Mr. Yanuck
would testify -- it's not that he would
be offering testimony to
somehow defend against that conviction, but ... Here's how I see
it: I mean, the whole purpose behind
Mr. Smith trying to get in the possession of the
pornography is to show that he had some interest in children or some intent to molest. So the purpose of having Mr. Yanuck come in is that Mr. Yanuck would beable to testify that he had hired Mr. Duffett -- strange as this sounds, it is true -- to perform some work for him in a criminal investigative sense on a pedophilia cases. Yanuck would not come in and say, I authorized him to download child pornography. However, he would be able to offer that he did have a
paid working relationship with Mr.
Duffett in the investigation of pedophilia for Mr. Yanuck's office."
But a number of times, the judge says things like "There's just no getting around the fact that Mr. Duffett pleaded guilty to the charge in federal court in Nevada and what, in essence, you wanted to do was relitigate to show that he was in fact innocent."
Petrovich tried again, in her motion for a new trial, to explain that the witnesses were to rebut the propensity evidence and offer the jury a non-sexual explanation for the conviction, but the judge kept saying she was trying to relitigate the conviction and excluded the witnesses for that purpose.
Trial Court Error 5 - Excluded 1108 Rebuttal Evidence under 352
The judge allowed evidence of the prior conviction to be admitted, but then excluded the defense witnesses in order to save time.
Section 352 allows the court to exclude otherwise admissable evidence if it would take up an undue amount of the courts time.
But the evidence that is subject to review is the prosecutions propensity evidence, not the defense rebuttal evidence.
The law is clear that once the prosecution has introduced propensity evidence under 1108, the defense is entitled to rebut that evidence. (If they can)
You can' t save time by admitting the prosecution evidence and then refusing to allow the defendant to present a defense.
Yet, that is exactly what happened
The trial court allowed in the prior and excluded the defense, saying:
THE COURT: "And I don't want to get bogged down in a mini trial of litigating something he's already been convicted of when all you have to do, or all you're required to do to get the effect that I think you want, is to show that he's been convicted of this."
Why get bogged down with a defense at all when the only thing you need for a conviction is the prosecution evidence?
Trials do go much faster when the jury only gets to hear one side.
Section 352 allows the court to exclude otherwise admissable evidence if it would take up an undue amount of the courts time.
But the evidence that is subject to review is the prosecutions propensity evidence, not the defense rebuttal evidence.
The law is clear that once the prosecution has introduced propensity evidence under 1108, the defense is entitled to rebut that evidence. (If they can)
You can' t save time by admitting the prosecution evidence and then refusing to allow the defendant to present a defense.
Yet, that is exactly what happened
The trial court allowed in the prior and excluded the defense, saying:
THE COURT: "And I don't want to get bogged down in a mini trial of litigating something he's already been convicted of when all you have to do, or all you're required to do to get the effect that I think you want, is to show that he's been convicted of this."
Why get bogged down with a defense at all when the only thing you need for a conviction is the prosecution evidence?
Trials do go much faster when the jury only gets to hear one side.
Trial Court Error 6 - Excluded Defense Witness 1
Jeff had a witness to present that would show that in November, 2001, there was no pornography of any kind on any of Jeff's computers.
This would show that Jeff did not possess the pornography in question during the period of time he had contact with the alleged victims.
The judge excluded the LAPD Detective's testimony as irrelevant.
Jeff had a clear right to present evidence that in November, 2001, his computers were seized and searched pursuant to a warrant during an identity theft investigation and that no porn of any kind was found on any of his computers.
This might indicate to the jury that he was not a pedophile, because if he was, he likely would have had porn on his computer then too.
The court excluded the witness, stating that it was neither relevant nor probative, and that "... the fact that he didn't have child pornography on his computer in 2001 has both nothing to do with the fact that he did in 2002."
This is absolutely, without a doubt, 100%, the opposite of the law.
In People v. Callahan the court stated "... the issue of whether one has a propensity-“natural inclination or tendency”-to behave a certain way is not resolved dispositively by the fact that one has behaved that way on another occasion. However, the fact one has behaved a certain way before does have a probative value on whether a person is capable of such conduct and whether he/she is disinclined or not to engage in such conduct.
Therefore, proof that a person has not behaved in a similar situation to the situation used to show tendency or propensity is probative to show he/she does not have that tendency.
Just as evidence of prior bad acts is not dispositive that a person behaved that way again, proof that they did not behave that way given a similar opportunity is probative of whether he/she does not have a propensity. Such evidence would have probative value in showing that the accused does not have a propensity to engage in certain behavior, thus helping the trier of fact determine that they should not utilize a conclusion of propensity in determining whether the accused committed the act in question."
Prior instances of good behavior under similar circumstances to those used to show propensity are admissable.
The LAPD Detective was going to testify about a prior instance of good behavior similar to the one used to show propensity.
November, 2001, Jeff's computers were seized and searched pursuant to a warrant during an identity theft investigation.
No porn of any kind was found on any of his computers.
November, 2002, Jeff's computers were seized and searched pursuant to a warrant during an identity theft investigation.
Child pornography was found on one of his computers.
This is exactly the type of evidence discussed by the Callahan Court and was clearly admissable.
This would show that Jeff did not possess the pornography in question during the period of time he had contact with the alleged victims.
The judge excluded the LAPD Detective's testimony as irrelevant.
Jeff had a clear right to present evidence that in November, 2001, his computers were seized and searched pursuant to a warrant during an identity theft investigation and that no porn of any kind was found on any of his computers.
This might indicate to the jury that he was not a pedophile, because if he was, he likely would have had porn on his computer then too.
The court excluded the witness, stating that it was neither relevant nor probative, and that "... the fact that he didn't have child pornography on his computer in 2001 has both nothing to do with the fact that he did in 2002."
This is absolutely, without a doubt, 100%, the opposite of the law.
In People v. Callahan the court stated "... the issue of whether one has a propensity-“natural inclination or tendency”-to behave a certain way is not resolved dispositively by the fact that one has behaved that way on another occasion. However, the fact one has behaved a certain way before does have a probative value on whether a person is capable of such conduct and whether he/she is disinclined or not to engage in such conduct.
Therefore, proof that a person has not behaved in a similar situation to the situation used to show tendency or propensity is probative to show he/she does not have that tendency.
Just as evidence of prior bad acts is not dispositive that a person behaved that way again, proof that they did not behave that way given a similar opportunity is probative of whether he/she does not have a propensity. Such evidence would have probative value in showing that the accused does not have a propensity to engage in certain behavior, thus helping the trier of fact determine that they should not utilize a conclusion of propensity in determining whether the accused committed the act in question."
Prior instances of good behavior under similar circumstances to those used to show propensity are admissable.
The LAPD Detective was going to testify about a prior instance of good behavior similar to the one used to show propensity.
November, 2001, Jeff's computers were seized and searched pursuant to a warrant during an identity theft investigation.
No porn of any kind was found on any of his computers.
November, 2002, Jeff's computers were seized and searched pursuant to a warrant during an identity theft investigation.
Child pornography was found on one of his computers.
This is exactly the type of evidence discussed by the Callahan Court and was clearly admissable.
Thursday, August 21, 2014
Trial Court Error 7 - Excluded Defense Witness 2
Once it was established that there was no porn on Jeff's computers in 2001, Petrovich was going to follow up with another witness to explain why it was there in 2002.
For that, she subpeonaed the attorney Jeff used to work for, Jeffrey Scott Yanuck.
When investigating the possession of child porn case in 2002, Yanuck told federal investigators that he employed Jeff in 2001 to help him with cases, including sex crimes.
The judge excluded Yanuck's testimony as also as irrelevant.
However, the law as established in People v Callahan states that "It appears to us that section 1108, subdivision (a) allows the prosecution to introduce a particular type of evidence (“evidence of the defendant's commission of another sexual offense or offenses”)
Once the prosecutor has done this, the defendant is faced with the task of rebutting (if the defendant chooses to attempt to do so) the prosecution's character evidence.
... Because there is no statute expressly limiting the type of rebuttal character evidence a defendant may present when the prosecution has introduced section 1108, subdivision (a) character evidence, the defendant is permitted to introduce any or all of the three types of character evidence - opinion evidence, reputation evidence, and evidence of specific incidents of conduct."
The jury was free to weigh the relevance of the testimony, but he was clearly allowed to present it.
There was a bit of a kerfuffle over Yanuck's testimony.
Although initially cooperative with Petrovitch, once it became clear that she intended to call him as a witness, things changed dramatically.
He stated he did not want to testify and attempted to avoid being served.
Once served, he failed to appear and the judge had to issue a warrant for his arrest.
Once forced to appear during the trial, he threatened to "Sink his ass" if put on the stand by the defense.
However, he had already made statements to federal investigators in 2003 and to the defense team in the current case.
Then he claimed not to remember what he told the federal investigators in 2003.
He claimed not to remember what he told the defense investigator or Petrovich a few weeks earlier.
Suddenly he didn't remember working on any sex crime cases with Jeff at all and minimized Jeff's role while they worked together to "Making charts and stuff."
A clear case of "Memoryitis," but there is plenty of evidence to refresh his recollection.
Amazon.com account records shows that at the same time he started working for Yanuck, Jeff ordered 3 books about sex crime investigation.
As a Court appointed attorney there would be records of what cases Yanuck was assigned to during that period of time and Jeff could provide the names of cases he worked on and what his input was.
Jeff claims that there are other attorneys, Yanuck's office staff, Court staff, victims, witnesses, and even some judges who might remember them as working together.
Petrovich subpoenaed Jeff's phone records for the trial.
His phone records show calls from Jeff's phone to a number he claims is Yanuck's.
Sometimes up to 25 a day.
Over 1000 of them during the course of several months during the time period Yanuck admitted employing him. The times ranging from 6 am to 11 pm.
This supports Jeff's story, which is that they worked together daily for 6 months.
They went to court together daily and Jeff worked on the cases at nights and on weekends.
Jails record incoming and outgoing mail to attorneys. The records show that Yanuck corresponded with Jeff for years after his arrest.
Yanuck's attempt to downplay Jeff's role to, "He used to make charts and stuff..." is clearly ridiculous, but it may have muddied the water in regards to admissability of his testimony.
But, even if Yanuck changed his story that dramatically, Petrovich could have followed up by putting the federal investigator on the stand to testify about what Yanuck actually said back in 2003.
All of that goes to the weight of the evidence, not its admissibility.
The jury could have considered his testimony after they heard it and decided what to do with it.
The fact remains that when told there was a potential explanation that the prior was not sexual, the jurors said it likely would have made a difference in their decision had they heard it.
For that, she subpeonaed the attorney Jeff used to work for, Jeffrey Scott Yanuck.
When investigating the possession of child porn case in 2002, Yanuck told federal investigators that he employed Jeff in 2001 to help him with cases, including sex crimes.
The judge excluded Yanuck's testimony as also as irrelevant.
However, the law as established in People v Callahan states that "It appears to us that section 1108, subdivision (a) allows the prosecution to introduce a particular type of evidence (“evidence of the defendant's commission of another sexual offense or offenses”)
Once the prosecutor has done this, the defendant is faced with the task of rebutting (if the defendant chooses to attempt to do so) the prosecution's character evidence.
... Because there is no statute expressly limiting the type of rebuttal character evidence a defendant may present when the prosecution has introduced section 1108, subdivision (a) character evidence, the defendant is permitted to introduce any or all of the three types of character evidence - opinion evidence, reputation evidence, and evidence of specific incidents of conduct."
The jury was free to weigh the relevance of the testimony, but he was clearly allowed to present it.
There was a bit of a kerfuffle over Yanuck's testimony.
Although initially cooperative with Petrovitch, once it became clear that she intended to call him as a witness, things changed dramatically.
He stated he did not want to testify and attempted to avoid being served.
Once served, he failed to appear and the judge had to issue a warrant for his arrest.
Once forced to appear during the trial, he threatened to "Sink his ass" if put on the stand by the defense.
However, he had already made statements to federal investigators in 2003 and to the defense team in the current case.
Then he claimed not to remember what he told the federal investigators in 2003.
He claimed not to remember what he told the defense investigator or Petrovich a few weeks earlier.
Suddenly he didn't remember working on any sex crime cases with Jeff at all and minimized Jeff's role while they worked together to "Making charts and stuff."
A clear case of "Memoryitis," but there is plenty of evidence to refresh his recollection.
Amazon.com account records shows that at the same time he started working for Yanuck, Jeff ordered 3 books about sex crime investigation.
As a Court appointed attorney there would be records of what cases Yanuck was assigned to during that period of time and Jeff could provide the names of cases he worked on and what his input was.
Jeff claims that there are other attorneys, Yanuck's office staff, Court staff, victims, witnesses, and even some judges who might remember them as working together.
Petrovich subpoenaed Jeff's phone records for the trial.
His phone records show calls from Jeff's phone to a number he claims is Yanuck's.
Sometimes up to 25 a day.
Over 1000 of them during the course of several months during the time period Yanuck admitted employing him. The times ranging from 6 am to 11 pm.
This supports Jeff's story, which is that they worked together daily for 6 months.
They went to court together daily and Jeff worked on the cases at nights and on weekends.
Jails record incoming and outgoing mail to attorneys. The records show that Yanuck corresponded with Jeff for years after his arrest.
Yanuck's attempt to downplay Jeff's role to, "He used to make charts and stuff..." is clearly ridiculous, but it may have muddied the water in regards to admissability of his testimony.
But, even if Yanuck changed his story that dramatically, Petrovich could have followed up by putting the federal investigator on the stand to testify about what Yanuck actually said back in 2003.
All of that goes to the weight of the evidence, not its admissibility.
The jury could have considered his testimony after they heard it and decided what to do with it.
The fact remains that when told there was a potential explanation that the prior was not sexual, the jurors said it likely would have made a difference in their decision had they heard it.
Ineffective Assistance of Counsel - Linda Petrovich
The battle over the admission of the prior conviction and the exclusion of the defense witnesses, as described in the Trial Court errors section, was lost with hardly a fight.
Riverside County Deputy Public Defender, Linda Petrovich, had a number of cases to support her position that a defendant is allowed to present rebuttal evidence to 1108 propensity evidence.
She had rock solid case law to show that a specific instance of good behavior similar to that used to show propensity was admissable, yet she used none of it.
There is no doubt that the trial would have been won if the prior had been excluded, or rebuttal evidence presented.
Failure to present the relevant case law couldn't have been a strategic decision. She must not have been familiar with the law.
Even a month later, in a motion for a new trial, she still did not support her argument with case law that seems irrefutable.
That makes her ineffective as counsel.
Jeff is against my calling Petrovich ineffective, (although he himself did so in his Petition for a Writ of Habeas Corpus)
He stated that he felt she was an excellent attorney who worked very hard on his case.
He said he would let her represent him again if he gets a new trial.
I guess we will have to agree to disagree.
Riverside County Deputy Public Defender, Linda Petrovich, had a number of cases to support her position that a defendant is allowed to present rebuttal evidence to 1108 propensity evidence.
She had rock solid case law to show that a specific instance of good behavior similar to that used to show propensity was admissable, yet she used none of it.
There is no doubt that the trial would have been won if the prior had been excluded, or rebuttal evidence presented.
Failure to present the relevant case law couldn't have been a strategic decision. She must not have been familiar with the law.
Even a month later, in a motion for a new trial, she still did not support her argument with case law that seems irrefutable.
That makes her ineffective as counsel.
Jeff is against my calling Petrovich ineffective, (although he himself did so in his Petition for a Writ of Habeas Corpus)
He stated that he felt she was an excellent attorney who worked very hard on his case.
He said he would let her represent him again if he gets a new trial.
I guess we will have to agree to disagree.
Hung... then Guilty
Despite having the prior introduced and not being able to offer an explanation, the jury still hung on all counts dealing with Ashlee.
They found her story so incredible, that even thinking that Jeff was a child pornography possessing pedophile, they still couldn't find him guilty of touching her based on her testimony.
Had it not been for the prior, Jeff would be free right now.
They also stated they had credibility issues with Alyssa, but even if her story was rock solid, they needed a conviction for Ashley too or all counts would have to be dismissed.
After being instructed to return to deliberate further, the jurrors eventually returned a verdict of guilty.
They found her story so incredible, that even thinking that Jeff was a child pornography possessing pedophile, they still couldn't find him guilty of touching her based on her testimony.
Had it not been for the prior, Jeff would be free right now.
They also stated they had credibility issues with Alyssa, but even if her story was rock solid, they needed a conviction for Ashley too or all counts would have to be dismissed.
After being instructed to return to deliberate further, the jurrors eventually returned a verdict of guilty.
Wednesday, August 20, 2014
Sentencing - 60 to Life
The sentencing was kind of humorous.
"THE COURT: In this matter, the defendant is...[W]ith respect to Count 1, the defendant is ordered committed to state prison for the time
prescribed by law.
Because of the strike conviction, that's 30 years to life.
On Count 2, the defendant is ordered
committed to state
prison for the term prescribed by law,
that being 30 years to
life.
(Blah blah blah)
That's to be served consecutively to
the time imposed in Counts 1, 2 and 3.
The reason a consecutive term is appropriate because of two factors that weigh heavily in the Court's mind.
That is that the defendant took advantage of a position of trust and the victim was particularly vulnerable."
(That's my favorite part.
Does that mean that the next guy who goes before him can expect a concurrent sentence as long as they snatched a kid off the street instead of abusing a position of trust?
Aren't all kid vulnerable to adults?)
"THE COURT: In this matter, the defendant is...[W]ith respect to Count 1, the defendant is ordered committed to state prison for the time
prescribed by law.
Because of the strike conviction, that's 30 years to life.
On Count 2, the defendant is ordered
committed to state
prison for the term prescribed by law,
that being 30 years to
life.
(Blah blah blah)
That's to be served consecutively to
the time imposed in Counts 1, 2 and 3.
The reason a consecutive term is appropriate because of two factors that weigh heavily in the Court's mind.
That is that the defendant took advantage of a position of trust and the victim was particularly vulnerable."
(That's my favorite part.
Does that mean that the next guy who goes before him can expect a concurrent sentence as long as they snatched a kid off the street instead of abusing a position of trust?
Aren't all kid vulnerable to adults?)
Tuesday, August 19, 2014
The Appeal - Ineffective Assistance of Appellate Counsel.
On appeal Jeff was represented by Tonja R. Torres.
I don't have copies of the briefs that Torres filed.
Jeff says there is more than 1 because when he received a copy of the first brief, he felt she missed an argument concerning the admission of the LAPD detective being covered by Callahan.
After he wrote and told her so, she agreed and filed an amended brief.
I say she is ineffective for two reasons.
First, she conceeds the prior was properly admitted instead of arguing that it should have been excluded.
Second, once Jeff pointed out that Callahan applied to the LAPD Detective also, she filed an additional brief.
But in doing so, she misquoted Callahan in a way that seriously weakened her argument.
Callahan states that a defendant is entitled to introduce evidence of good behavior under similar circumstances."
Which is exactly what Jeff was trying to do.
Torres misqouted Callahan.
Instead of "...evidence of good behavior under similar circumstances."
She wrote "...evidence of good behavior under similar circumstances to those surrounding the charged sexual offense."
Which was not what he was trying to do.
Now, in theory, it shouldn't have made a difference.
There is no way that the Court of Appeals is going to rely on an attorneys misrepresentation of the law in their ruling, right?
They will either be very familiar with the law or they would look it up for themselves, right?
Wrong.
If you are familiar with People v. Callahan, you will have to read it to believe it.
I don't have copies of the briefs that Torres filed.
Jeff says there is more than 1 because when he received a copy of the first brief, he felt she missed an argument concerning the admission of the LAPD detective being covered by Callahan.
After he wrote and told her so, she agreed and filed an amended brief.
I say she is ineffective for two reasons.
First, she conceeds the prior was properly admitted instead of arguing that it should have been excluded.
Second, once Jeff pointed out that Callahan applied to the LAPD Detective also, she filed an additional brief.
But in doing so, she misquoted Callahan in a way that seriously weakened her argument.
Callahan states that a defendant is entitled to introduce evidence of good behavior under similar circumstances."
Which is exactly what Jeff was trying to do.
Torres misqouted Callahan.
Instead of "...evidence of good behavior under similar circumstances."
She wrote "...evidence of good behavior under similar circumstances to those surrounding the charged sexual offense."
Which was not what he was trying to do.
Now, in theory, it shouldn't have made a difference.
There is no way that the Court of Appeals is going to rely on an attorneys misrepresentation of the law in their ruling, right?
They will either be very familiar with the law or they would look it up for themselves, right?
Wrong.
If you are familiar with People v. Callahan, you will have to read it to believe it.
The Apellate Court Ruling
Insane, is the first word that comes to mind.
If you are an attorney who is at all familiar with 1108 Propensity evidence, you will have to read it to believe it.
People v. Duffett
The Appellate Court upheald the conviction, stating:
1) That even if Jeff could rebut the propensity evidence, allowing him to present evidence that his possession of the porn was for a nonsexual purpose would fly in the face of section 1108 that allows crimes, including possession of child pornography, to show that a defendant has a propensity to commit the current offense.
They explained that it is OK to use a prior that did not require sexual intent to prove he had a propensity to molest children, because possession of child porography is a strict liability crime, sexual intent is either presumed in every case, or is irrelevant.
First off, sexual intent isn't presumed in every case because it isn't an element of the offense. You don't need to have a sexual intent to be found guilty of possessing child pornography. So, there is no reason to presume it.
It is, in fact, irrelevant. But only as to a conviction for possession of child pornography.
Lack of sexual intent doesn't then become irrelevant in showing one's propensity to molest children.
By not letting him explain that the prior was not sexual, the jurrors made the assumption that it was sexual.
In essence, the court tricked the jury into thinking that Jeff was a child porn collecting pedophile
2) They said Callahan does not apply because the defendant was not trying to show how he conducted himself within the law under circumstances similar to those here.
Callahan actually says a defendant is allowed to present evidence of good conduct under circumstances similar to those used to show propensity. Which was exactly what he was trying to do with the LAPD Detective.
They got that blurb from the brief Jeff's appellate attorney filed.
She misquoted Callahan in her brief and the Court used that misquotation to deny him.
Doesn't a court's ruling have to be based on the actual law and not something they made up?
How could an Appellate Court be so unfamiliar with the law as to make that mistake to begin with?
3) That even if the witnesses had testified it wouldn't have resulted in a different verdict because of the enormous leaps in logic, that would have to be made by the jorrors, blah blah blah.
However, the jurrors themselves said it would have made a difference.
It is hard to imagine a court making a ruling based on what they say the jurrors would have done, rather than what the jurrors themselves said they would have done.
4) That the LAPD witness testimony was not probative because it didn' t prove the only reason Jeff had the porn was because of his work with Yanuck.
That is contrary to the holding of the Court in Callahan that states that a prior instance of good behavior similar to that used to show propensity is both relevant and probative.
It doesn't need to support, or be supported by any other testimony to be admissable.
A defendant's right to present rebuttal evidence, once the prosecution has presented 1108 propensity evidence, is so well established that the California Judicial Council spells it out along with the jury instruction CALCRIM 1191.
There is no other ruling, anywhere, other than People vs. Duffett that holds a defendant may not rebut propensity evidence.
If you are an attorney who is at all familiar with 1108 Propensity evidence, you will have to read it to believe it.
People v. Duffett
The Appellate Court upheald the conviction, stating:
1) That even if Jeff could rebut the propensity evidence, allowing him to present evidence that his possession of the porn was for a nonsexual purpose would fly in the face of section 1108 that allows crimes, including possession of child pornography, to show that a defendant has a propensity to commit the current offense.
They explained that it is OK to use a prior that did not require sexual intent to prove he had a propensity to molest children, because possession of child porography is a strict liability crime, sexual intent is either presumed in every case, or is irrelevant.
First off, sexual intent isn't presumed in every case because it isn't an element of the offense. You don't need to have a sexual intent to be found guilty of possessing child pornography. So, there is no reason to presume it.
It is, in fact, irrelevant. But only as to a conviction for possession of child pornography.
Lack of sexual intent doesn't then become irrelevant in showing one's propensity to molest children.
By not letting him explain that the prior was not sexual, the jurrors made the assumption that it was sexual.
In essence, the court tricked the jury into thinking that Jeff was a child porn collecting pedophile
2) They said Callahan does not apply because the defendant was not trying to show how he conducted himself within the law under circumstances similar to those here.
Callahan actually says a defendant is allowed to present evidence of good conduct under circumstances similar to those used to show propensity. Which was exactly what he was trying to do with the LAPD Detective.
They got that blurb from the brief Jeff's appellate attorney filed.
She misquoted Callahan in her brief and the Court used that misquotation to deny him.
Doesn't a court's ruling have to be based on the actual law and not something they made up?
How could an Appellate Court be so unfamiliar with the law as to make that mistake to begin with?
3) That even if the witnesses had testified it wouldn't have resulted in a different verdict because of the enormous leaps in logic, that would have to be made by the jorrors, blah blah blah.
However, the jurrors themselves said it would have made a difference.
It is hard to imagine a court making a ruling based on what they say the jurrors would have done, rather than what the jurrors themselves said they would have done.
4) That the LAPD witness testimony was not probative because it didn' t prove the only reason Jeff had the porn was because of his work with Yanuck.
That is contrary to the holding of the Court in Callahan that states that a prior instance of good behavior similar to that used to show propensity is both relevant and probative.
It doesn't need to support, or be supported by any other testimony to be admissable.
A defendant's right to present rebuttal evidence, once the prosecution has presented 1108 propensity evidence, is so well established that the California Judicial Council spells it out along with the jury instruction CALCRIM 1191.
There is no other ruling, anywhere, other than People vs. Duffett that holds a defendant may not rebut propensity evidence.
Why help a child molester?
"Why help a child molester?" is a question that gets asked every so often.
The altruistic answer is that everyone deserves a fair trial.
While I do believe that, my answer is that I don't believe he is a child molester.
There is nothing to support the allegations other than the testimony of the alleged victims themselves.
The fact that there isn't any additional evidence in many cases doesn't bolster the credibility of the alleged victims, it just means you have to evaluate what evidence is there, and that evidence does not support their claims.
"Well, he was convicted." is the next thing people say. But the whole point is that he was wrongly convicted. He didn't get a fair trial. If he had a fair trial the first time he wouldn't need help now.
You can't refuse to help him get a fair trial because he wrongly convicted the first time around and is now labeled a child molester.
A conviction isn't proof positive that a person committed the act. Just ask the steady stream of people the let out of prison after being wrongly convicted.
Most were convicted of sex crimes and labeled as sex offenders. Had everyone said "Why help a rapist?" They would still be in prison.
The altruistic answer is that everyone deserves a fair trial.
While I do believe that, my answer is that I don't believe he is a child molester.
There is nothing to support the allegations other than the testimony of the alleged victims themselves.
The fact that there isn't any additional evidence in many cases doesn't bolster the credibility of the alleged victims, it just means you have to evaluate what evidence is there, and that evidence does not support their claims.
"Well, he was convicted." is the next thing people say. But the whole point is that he was wrongly convicted. He didn't get a fair trial. If he had a fair trial the first time he wouldn't need help now.
You can't refuse to help him get a fair trial because he wrongly convicted the first time around and is now labeled a child molester.
A conviction isn't proof positive that a person committed the act. Just ask the steady stream of people the let out of prison after being wrongly convicted.
Most were convicted of sex crimes and labeled as sex offenders. Had everyone said "Why help a rapist?" They would still be in prison.
Monday, August 18, 2014
Appendix A - What is 1108 Propensity evidence?
Basically, California Evidence Code section 1108 allows the prosecution to introduce evidence a defendant has committed a prior sex crime during a trial for another sex crime.
You can read about it at
www.fredthia.com
It is a good law in general, but it can be abused.
If a man is charged with molesting a little girl and he has a prior conviction for indecent exposure, does the prior show he has a propensity to molest children?
What if the indecent exposure was exposing his penis to kindergardeners?
That might be relevant.
But, what if the prior was for running naked across the campus while pledging a fraternity at college?
Does that show a propensity to molest children?
Not everyone that has been convicted for a "sex crime" is a pervert.
In this case, Jeff was not allowed to explain the circumstances of his prior conviction.
The jurrors assumed his possession of the porn was for a sexual purpose and they convicted him.
This is a misuse of Evidence Code Section 1108.
www.fredthia.com
It is a good law in general, but it can be abused.
If a man is charged with molesting a little girl and he has a prior conviction for indecent exposure, does the prior show he has a propensity to molest children?
What if the indecent exposure was exposing his penis to kindergardeners?
That might be relevant.
But, what if the prior was for running naked across the campus while pledging a fraternity at college?
Does that show a propensity to molest children?
Not everyone that has been convicted for a "sex crime" is a pervert.
In this case, Jeff was not allowed to explain the circumstances of his prior conviction.
The jurrors assumed his possession of the porn was for a sexual purpose and they convicted him.
This is a misuse of Evidence Code Section 1108.
Sunday, August 17, 2014
Appendix B - Why did Jeff have the porn?
Jeff was a computer programmer. Although he worked briefly as an investigator for Yanuck, he made his living writing software.
In 2002, he wrote a program to be used by defense attorneys in sex crime cases.
The program would take an image, break it down into pixels and count the colors of each.
By comparing the colors in each picture, the program could give a guess as to the chances of a match.
(A picture of a sunset would have different colors than pictures of a desert.
The program could find the 1 other sunset picture in a million desert pictures, or could crawl the internet an find other pictures that might be sunsets)
His plan was to enter a known picture of the victims in the sex crime cases he was working on and see if it would match any images out there on the internet.
People who molest children often take pictures to record the event and then share the pictures with other pedophiles.
Finding a picture of the victim being molested by someone other than their client would be a bonanza for the defense.
Children will sometimes report abuse, but name the wrong person as their abuser. This can get the abuse to stop, but would not trigger any revenge threatened by the actual abuser.
Of course it also runs an innocent person through the wringer, but kids don't think of that.
Jeff wrote the program back in the days before everyone had high speed internet connections.
Yanuck had one at his office though and that is what inspired him.
After running it for a very short time, it became clear it wasn't going to work.
Unless the first image was one of a series of images, the program was unlikely to make a match.
The difference in lighting, or cameras, would cause a persons face to be recorded as different colors on the RGB color scale.
That diference alone would keep the program from finding matches.
The plan was abandoned and the program deleted, but the program downloaded the files into one directory and then moved them to another if there was a potential match, or automatically deleted if not.
He must have missed one of the directories when deleting the program and didn't notice until they were searching his computer after his arrest for the manufacturing of counterfeit credit cards.
He says he thought what he was doing was legal because the California Penal Code says a defense investigator may possess child pornography for a case he is working on. (I'll have to look that up)
He said he only pleaded guilty because A) he was going to prison anyway for the counterfeit credit cards, and B) they said they would run the time concurrent with his other sentence.
He claims that his federal public defender pointed out that federal law superceeds state law, so no matter what the penal code said, it might still be a violation of federal law. If convicted, he faced up to 20 years per image.
He took the deal.
Ironically, a year later, the feds started using software to find victims of child pornography.
http://en.m.wikipedia.org/wiki/National_Child_Victim_Identification_Program
Jeff's amazon.com purchase history was subpoenaed for trial. For the year 2002, his only purchases were:
Investigative Interviews of Children: A Guide for Helping Professionals
Investigative Interviews of Children: A Guide for Helping Professionals
Debra A. Poole, Michael E. Lamb
The Secret Lives of Girls: What Good Girls Really Do--Sex Play,...
The Secret Lives of Girls: What Good Girls Really Do--Sex Play,...
Sharon Lamb
The Sexual Exploitation of Children : A Practical Guide to...
The Sexual Exploitation of Children : A Practical Guide to...
Seth L. Goldstein
Sold by: Amazon.com LLC
View Order Details
Order placed on Jun 15, 2002
That was the exact time frame he started working for Yanuck on sex crime cases and downloaded the porn.
A previous search on his computers 6 months earlier showed no porn of any kind.
There is not a shred of evidence to suggest his possession of the porn was for any reason but the cases he was working on.
In 2002, he wrote a program to be used by defense attorneys in sex crime cases.
The program would take an image, break it down into pixels and count the colors of each.
By comparing the colors in each picture, the program could give a guess as to the chances of a match.
(A picture of a sunset would have different colors than pictures of a desert.
The program could find the 1 other sunset picture in a million desert pictures, or could crawl the internet an find other pictures that might be sunsets)
His plan was to enter a known picture of the victims in the sex crime cases he was working on and see if it would match any images out there on the internet.
People who molest children often take pictures to record the event and then share the pictures with other pedophiles.
Finding a picture of the victim being molested by someone other than their client would be a bonanza for the defense.
Children will sometimes report abuse, but name the wrong person as their abuser. This can get the abuse to stop, but would not trigger any revenge threatened by the actual abuser.
Of course it also runs an innocent person through the wringer, but kids don't think of that.
Jeff wrote the program back in the days before everyone had high speed internet connections.
Yanuck had one at his office though and that is what inspired him.
After running it for a very short time, it became clear it wasn't going to work.
Unless the first image was one of a series of images, the program was unlikely to make a match.
The difference in lighting, or cameras, would cause a persons face to be recorded as different colors on the RGB color scale.
That diference alone would keep the program from finding matches.
The plan was abandoned and the program deleted, but the program downloaded the files into one directory and then moved them to another if there was a potential match, or automatically deleted if not.
He must have missed one of the directories when deleting the program and didn't notice until they were searching his computer after his arrest for the manufacturing of counterfeit credit cards.
He says he thought what he was doing was legal because the California Penal Code says a defense investigator may possess child pornography for a case he is working on. (I'll have to look that up)
He said he only pleaded guilty because A) he was going to prison anyway for the counterfeit credit cards, and B) they said they would run the time concurrent with his other sentence.
He claims that his federal public defender pointed out that federal law superceeds state law, so no matter what the penal code said, it might still be a violation of federal law. If convicted, he faced up to 20 years per image.
He took the deal.
Ironically, a year later, the feds started using software to find victims of child pornography.
http://en.m.wikipedia.org/wiki/National_Child_Victim_Identification_Program
Jeff's amazon.com purchase history was subpoenaed for trial. For the year 2002, his only purchases were:
Investigative Interviews of Children: A Guide for Helping Professionals
Investigative Interviews of Children: A Guide for Helping Professionals
Debra A. Poole, Michael E. Lamb
The Secret Lives of Girls: What Good Girls Really Do--Sex Play,...
The Secret Lives of Girls: What Good Girls Really Do--Sex Play,...
Sharon Lamb
The Sexual Exploitation of Children : A Practical Guide to...
The Sexual Exploitation of Children : A Practical Guide to...
Seth L. Goldstein
Sold by: Amazon.com LLC
View Order Details
Order placed on Jun 15, 2002
That was the exact time frame he started working for Yanuck on sex crime cases and downloaded the porn.
A previous search on his computers 6 months earlier showed no porn of any kind.
There is not a shred of evidence to suggest his possession of the porn was for any reason but the cases he was working on.
Friday, August 15, 2014
Appendix C - How it all started for me
My name is Scott. I work at a small law firm owned by my uncle and am planning on going to law school once I finish college.
I was assigned the task of researching cases involving the use of propensity evidence admitted under California Evidence Code section 1108 for one of our client's cases.
Our client, we'll call him Bob, was accused by his ex-girlfriend of in appropriately touching her younger daughter.
Bob also had a 10 year old conviction for possion of child pornography.
My first thought was, "who the hell would let a pervert like that around their daughter in the first place?"
However, it turns out that the porn was on a computer he sent in to be repaired. He purchased the broken computer with no idea of what was on it.
After his arrest, the subsequent investigation showed no evidence of any other porn, or any evidence at all that he was a pedophile.
Evidence admitted under 1108 is used to show that a defendant has a propensity to commit crimes such as the one he's charged with.
Having possession of pornography that he didn't even know was there in no way shows that Bob had a propensity to molest children.
I thought we were home free until I ran across the case of People vs. Jeff Duffett.
He was also accused of molesting his ex-girlfriend's daughter.
He also had a conviction for possession of child pornography stemming from his work for a defense attorney on cases involving sex crimes. His possession of the pornography was not sexually related either.
But in his case, not only was the evidence that he had a prior conviction admitted at trial, he was not allowed to present any evidence to the jury to explain that his possession of the child pornography was for his job as a sex crimes investigator and not because he was sexually interested in children.
The jury was left to make the obvious connection; that he possessed the porn because he was a pedophile.
Although the jury initially hung, they eventually convicted him.
After trial, the jurrors stated to his defense attorney that they had credibility issues with both victims, but convicted him because of the prior.
When told of the circumstances surrounding the prior, they said that if they had known, they would not have convicted him
The Court of Appeals upheald the trial courts ruling, stating that, even if he was able to rebutt the propensity with evidence that his possession of the pornography was due to his job and not because he was sexually interested in children, allowing him to do so would fly in the face of section 1108 that says that prior convictions can be used to show he had a propensity to molest children.
This not only defies logic, it is contrary to every other published case on the subject, which specifically allows a defendant to rebut propensity evidence if he can.
The fact of a conviction listed in 1108 does not automatically establish a propensity to commit whatever crime one is charged with.
His case is literally the only case in which a defendant was not allowed to rebut 1108 propensity evidence.
You can't trick a jury into thinking someone is a pedophile in order to convict them.
Yet, that is EXACTLY what happened.
I thought my uncle would help him, but when I asked, he said "There is nothing we can do."
Once I finish college, I want to go to law school and become an attorney so I can help people, Even though I am only 19 and not yet an attorney, I am going to try.
I ordered the transcripts of the trial from the court reporter so I could read through the testimony.
As it turns out, the jurrors said on the record they had credibility issues with both the alleged victim's stories and that the prior played a major roll in their decision to convict him. If he had been able to present a defense, he would not have been convicted. It wasn't even close. The jury hung as it was.
After that I contacted the defendant in prison. He supplied me with even more documents and told me his story of the events.
I am probably the only person to have all of that information in the same place at the same time and take the time to review it.
Once I was finished, I was convinced that he not only didn't get a fair trial, but that he also didn't do what he is accused of.
The only way I can help him for now is to tell his story so others can decide for themselves.
I started this blog to do that.
I was assigned the task of researching cases involving the use of propensity evidence admitted under California Evidence Code section 1108 for one of our client's cases.
Our client, we'll call him Bob, was accused by his ex-girlfriend of in appropriately touching her younger daughter.
Bob also had a 10 year old conviction for possion of child pornography.
My first thought was, "who the hell would let a pervert like that around their daughter in the first place?"
However, it turns out that the porn was on a computer he sent in to be repaired. He purchased the broken computer with no idea of what was on it.
After his arrest, the subsequent investigation showed no evidence of any other porn, or any evidence at all that he was a pedophile.
Evidence admitted under 1108 is used to show that a defendant has a propensity to commit crimes such as the one he's charged with.
Having possession of pornography that he didn't even know was there in no way shows that Bob had a propensity to molest children.
I thought we were home free until I ran across the case of People vs. Jeff Duffett.
He was also accused of molesting his ex-girlfriend's daughter.
He also had a conviction for possession of child pornography stemming from his work for a defense attorney on cases involving sex crimes. His possession of the pornography was not sexually related either.
But in his case, not only was the evidence that he had a prior conviction admitted at trial, he was not allowed to present any evidence to the jury to explain that his possession of the child pornography was for his job as a sex crimes investigator and not because he was sexually interested in children.
The jury was left to make the obvious connection; that he possessed the porn because he was a pedophile.
Although the jury initially hung, they eventually convicted him.
After trial, the jurrors stated to his defense attorney that they had credibility issues with both victims, but convicted him because of the prior.
When told of the circumstances surrounding the prior, they said that if they had known, they would not have convicted him
The Court of Appeals upheald the trial courts ruling, stating that, even if he was able to rebutt the propensity with evidence that his possession of the pornography was due to his job and not because he was sexually interested in children, allowing him to do so would fly in the face of section 1108 that says that prior convictions can be used to show he had a propensity to molest children.
This not only defies logic, it is contrary to every other published case on the subject, which specifically allows a defendant to rebut propensity evidence if he can.
The fact of a conviction listed in 1108 does not automatically establish a propensity to commit whatever crime one is charged with.
His case is literally the only case in which a defendant was not allowed to rebut 1108 propensity evidence.
You can't trick a jury into thinking someone is a pedophile in order to convict them.
Yet, that is EXACTLY what happened.
I thought my uncle would help him, but when I asked, he said "There is nothing we can do."
Once I finish college, I want to go to law school and become an attorney so I can help people, Even though I am only 19 and not yet an attorney, I am going to try.
I ordered the transcripts of the trial from the court reporter so I could read through the testimony.
As it turns out, the jurrors said on the record they had credibility issues with both the alleged victim's stories and that the prior played a major roll in their decision to convict him. If he had been able to present a defense, he would not have been convicted. It wasn't even close. The jury hung as it was.
After that I contacted the defendant in prison. He supplied me with even more documents and told me his story of the events.
I am probably the only person to have all of that information in the same place at the same time and take the time to review it.
Once I was finished, I was convinced that he not only didn't get a fair trial, but that he also didn't do what he is accused of.
The only way I can help him for now is to tell his story so others can decide for themselves.
I started this blog to do that.
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