First Report

On February 25, 2011, at approximately 1pm, I, Ashley Todaro, Investigative Intern for the Primary Public Defender, established contact with McDonald’s employee            via telephone. I verbally identified myself and advised                 that I was working with the attorney representing                . I informed              that the reason for my contact was regarding an incident that occurred on October 27, 2008. I informed           that I wanted to ask her a few questions.              informed me that she was transferred to that McDonalds in 2009 after the incident.              agreed to speak with me and made the following statements:

1. Specifically, please ask them about the bathrooms?

Always clean.

2. Who cleaned them, how often they were cleaned?

As often as I can because they get very messy. People are very messy.

3. Did they have issues?

No. Men are messy.

4. Did they ever see them leaking?

No.

5. Did they ever see them dirty?

Yes. That’s why I clean them so often.

6. Also, please ask them what they know of                             ?

No, I don’t know him

7. What type of employee was she? How was she?

N/A

8. Is she a liar? Trouble maker?

N/A

9. Do they know of her lying? Have they ever known her to embellish information?

N/A

10. Any reason why she would dislike client?

N/A

11. Did they know client,                              ?

No.

12. Were they present when the accident happened?

No.

13. Do they recall                 and/or         immediately telling the Sheriff and the paramedics that they felt client had faked it?

N/A

I thanked              for her time and concluded the interview.

Writing a Report

There are several key components to writing up a report. These components are very important because if left out, the report can cause problems for the case when in trial. If the information is misstated or misrepresented it can also cause problems during trial. By using these guidelines, a report can be an accurate account of the transaction of events.

¶1. Cover all Grounds

- State who the interview is with

- State that they agreed to the interview

- State that you identified yourself and how you identified yourself

- State that the individual understood who you were and your reason for contacting them. Did you tell them that you work for the Defense Attorney for Person X?

- Then state, “The following is a summary of the account.”

¶2. Why

- Attempt to relate witness to case or defendant

- Explain why you interviewed this person

¶3. Body

- Give a summary of interview

- Conclude with, “So and So had nothing further to add so I terminated the interview.”

Crime Scene Photos

The other day I took my first crime scene photos. It is important to remember that a crime scene can be many days, even years, old. However, it is still very important to take our own pictures to gather information.

First, I interviewed a witness about what he remembered about the events of the crime that took place. The witness told me about the area and whether or not a similar crime has happened there before. After the interview, I felt the need to take pictures of the crime scene area to be analyzed back at the Public Defender’s Office.

I asked the witness where he was when he realized the crime was occurring. He said he was by his door and then ran outside when he heard the noise. I stood at his door and photographed what would have been his view of the crime scene. Next, I went onto the street and took multiple vantage point photos of the crime scene. I remembered from the interview that the witness mentioned there were other witnesses of the incident in his building. I took pictures from their vantage point as well. Lastly, because the crime occurred at night, I took photos of the lights in the area to determine whether or not the area was well lit.





This is not an accurate report of events and should not be used as a formal report or transaction.

Records Training

The other day I received official training on pulling records.  I went down to the San Diego County Courthouse to the 2^nd floor main business hall. The main business hall is where the Criminal Records are held for both misdemeanor and felony.  You can use the computers available to look up case files using the name and birth date of the defendant in the case.   If there is a case that cannot be found it is usually located at an off site storage facility called Iron Mountain.  The basement also stores cases dating from 1875.  Probation records are public within the first 60 days of sentencing.  After 60 days they are sealed in an envelope that only few people have access to.  If you have any trouble locating a case file, the people at the windows are more than happy to help.  However, certified copies of cases have to be pulled and copied by the windows.  In order to request a file, you need the date, case name and case number. 

The Hall of Justice houses the Civil Records.  To request these records you only need the case number.  Most of the time the window will make copies for you; however, when you wear your county ID you can make the copies yourself.  The fee is also waived when you can present a county ID.  This is where cases of child support and family records are available.  Domestic Records, such as, assault, child custody, divorce, paternity, restraining orders, and family law are all located on the 3rd floor of the Hall of Justice.  The Madge Bradley building hosts the Probate and Mental Health cases. The basement houses older records and microfilm. 

After learning all this, my supervisor sent me on a records pulling task.  I was given three case files to which I was to find their location, pull them, and make copies of the file’s complaint, plea, failure to comply, and minute orders.  Using the computer, I looked up the three case files to find the first one was on microfilm in the basement while the second and third were on the 2nd floor of Criminal Records.  I went to the basement first where I found the microfilm of the first case.  I flipped through the film and found that each page was easily identifiable and then printed off the desired pages.  Next, I headed upstairs to the 2nd floor and searched for the other two cases.  Once found, I pulled their files and took them to the copier.  One thing I noticed was that I needed to pay close attention to the order the pages were attached in the file.  I would not want to mix up the file and make it difficult for the next person who comes along wanting to read the case.  After pulling and copying the files, it is important to place the file either back in the exact spot it came from, or on a cart to be re-filed. 

Technology

There are three main programs and search engines that we use at the Office of the Public Defender; JCATS, CLEAR, and SDLaw.

JCATS is a government program that the county of San Diego uses to allow the Public Defender’s Office to look up and edit cases.  As an investigator, I can go to my folder and look up the cases that have been assigned to me.  By clicking on the case I can review the action requests the attorney assigns me, record my time spent on the case and each task, and see exactly what has been done by other investigators on the case.  This program makes case management very simple.

CLEAR is an investigative search tool that investigators use to locate witness's.  There are a few ways to perform a search; the most frequent being Name or Number.  By inputting a name into the engine and clicking search, a list of names, as well as addresses, phone numbers, socials, and DOB’s associated with that name, will pop up.  CLEAR gets its information from the Accessors office which compiles information from property records, phone records, electric records, etc.

SDLaw is a search program that enables investigators to locate witness's in jail.  It pulls up information on whether someone is currently in jail, where they are in jail, the charges, etc.  It also allows us to have a picture of the person. The photo is most commonly used by investigators who are doing interviews or serving subpoenas.  A photo makes it easier for investigators to identify the witness. 

Subpoena

This is a copy of the Proof of Service from the first subpoena I served.
Subpoena

There are a few things I find important to know when serving subpoenas:

• A subpoena “is a writ or order directed to a person and requiring the person’s attendance at a particular time and place to testify as a witness. It may also require a witness to bring any books, documents, or other things under the witness’s control which the witness is bound by law to produce in evidence.” (CCP , § 1985(a).)
• A Subpoena can be issued by the following: Judge, Magistrate, Clerk, DA, DA Investigator, PD, PD Investigator, and the Attorney of record for the defendant. (PC § 1326.)
• A Subpoena may be served by any person, 18 or older, except the defendant. (PC § 1328(a).)
• The best way to serve a subpoena is in person. However, the next best way is through the mail or fax. The service is completed when the witness acknowledges receipt of the subpoena to the sender, by telephone, mail, or in person. They must identify themselves with their DOB or drivers license number. (PC§ 1328(d).)
• To serve the police, it must be done in person or by delivering two copies to his or her immediate superior or agent designated. (PC § 1328(c).)
• To serve a minor, one must serve the minor’s parent, guardian, conservator, or similar fiduciary (but not the defendant). One may serve the child if he or she is 12 years of age or older. (PC § 1328(b) (1).)

Defending a Medical Marijuana Case in California

The other day I attended a training seminar on defending a medical marijuana case in California.  The training seminar was located in the Public Defender’s office and was open to interns, investigators, paralegals, and was mandatory for attorney’s.  I was very surprised at how many people showed up for the seminar.  I originally pictured a few lawyers in a small room with everyone taking notes.  However, it was just the opposite.  The seminar took place in a large room with a projector and at least a hundred very comfortable lounge chairs.  I looked around the room and could tell I was the only intern within eyesight.  Luckily, I work in the Primary Public Defender’s office, so the presenters were present in the room, whereas others were viewing via podcast. Here is some of the important information I took away from the training seminar.

Americans for Safe Access
Americans for Safe Access (ASA) is the largest national member based organization of patients, medical professionals, scientists, and concerned citizens promoting safe and legal access to cannabis for therapeutic uses and research.  ASA provides legal training and medical information to patients, attorneys, health and medical professionals and policymakers throughout the United States.  They also organize the media support for court cases, rapid response to law enforcement raids, and capacity-building for advocates.  Their successful lobbying, media and legal campaigns have resulted in important court precedents, new sentencing standards, and more compassionate community guidelines.  Their mission is to ensure safe and legal access to cannabis for therapeutic uses and research.

ASA's Patients Rights Project is a result of the outcry for accessible and current legal information on medical marijuana.  Medical cannabis patients and their providers suffer pervasive discrimination in employment, child custody, housing, public accommodation, education, and medical care because of misinformation about the medical efficacy of cannabis and a lack of statutory legal protections.  Furthermore, patients and their care providers are vulnerable to federal and state raids, arrest, prosecution, and incarceration.  ASA's Legal Affairs Department creates, projects, and expands the rights of medical cannabis patients through direct support, extensive monitoring, proactive litigation, education, organizing attorneys, and the drafting of legislation.

Proposition 215
On November 4th, 1996, California voters passed Proposition 215, also known as the Compassionate Use Act (CUA), to "ensure that seriously ill Californians have the right to obtain and use marijuana for medical purposes" without criminal penalty.  California Health and Safety Code ("H & S") § 11362.5(b)(1).  Since then, hundreds of medical marijuana patients and those who supply them with the medicine they need have been searched, arrested and prosecuted for marijuana violations, in large part because the CUA has been interpreted in a very obscure manner.  SB (Senate Bill) 420 was passed and then signed into law on October 13, 2003 after recognizing how the CUA was being interpreted.

Section 11357 and Section 11358
Section 11357, relating to the possession of marijuana, and Section 11358, relating to the cultivation of marijuana, shall not apply to a patient, or to a patients primary caregiver, who possesses or cultivates marijuana for the personal medical purposes of the patient upon the written or verbal recommendation or approval of a physician. (§ 11362.5(d).). 

H&S Code 11362.775 / MMPA
Qualified patients, persons with valid identification cards, and the designated primary caregivers of qualified patients and persons with identification cards, who associate within the State of California in order collectively or cooperatively to cultivate marijuana for medical purposes, shall not solely on the basis of that fact to be subject to state criminal sanctions under Section 11357, 11358, 11359, 11360, 11366, 11366.5, or 11570.


*AG Guidelines 2008*
California Attorney General Jerry Brown published guidelines for legally qualified patients and state law enforcement in August 2008, which give specific instruction to medical cannabis patients and law enforcement about how to comply with California's medical cannabis laws.  While these guidelines are not binding in court, they do represent the policy of the state's highest- ranking law enforcement officer as to what rights and responsibilities medical cannabis patients have under existing state law, and what police officers should do to uphold the law.  Publication of these guidelines is a major step forward in the implementation of California law, as they acknowledge that "a properly organized and operated collective or cooperative that dispenses medical marijuana through a storefront may be lawful under California law," provided the facility substantially complies with the guidelines.  The purpose of this report is to help legal medical cannabis patients and their primary caregivers who operate collectives and cooperatives understand and comply with the Attorney Generals guidelines.

*Distribution and Sales*
Accordingly, a collective may not distribute medical marijuana to any person who is not a member in good standing of the organization.  A dispensing collective may credit its members for marijuana they provide to the collective, which it may then allocate to other members.  Members also may reimburse the collective for marijuana that has been allocated to them.  Any monetary reimbursement that members provide to the collective should only be an amount necessary to cover overhead costs and operating expenses.

*Collectives and Cooperatives*
A collective should be an organization that merely facilitates the collaborative efforts of patient members - including the allocation of costs and revenues.  The collective should not purchase marijuana from, or sell to, non-members; instead, it should only provide a means for facilitating or coordinating transactions between members.  Cooperatives are an association of individuals united voluntarily to meet a common goal.  They are generally owned and operated by members of mutual benefit: some members contribute labor, others contribute financially.

*Membership*
Only qualified patients may join.  Medical marijuana is collectively grown for members and owned by members.  Management determines cost of marijuana based on cost of cultivation.  Contributions or purchase of non-marijuana products goes towards cost of cultivation.  Some baked goods may also be available.  A member agrees never to sell or distribute marijuana to non-members.


*Reimbursement and Allocation*
Marijuana grown at a collective for medical purposes may be:
a) Provided free to qualified patients and primary caregivers who are members of the collective;
b) Provided in exchange for services rendered to the entity;
c) Allocated based on fees that are reasonably calculated to cover overhead costs and operating expenses; or
d) Any combination of the above.

Preliminary Considerations
-Searches
-Arrests
-Motions for returning property
-Motions for determination of factual innocence

Pre Trial Proceedings
-Motion to set aside the indictment or information
-"Information Request" to dismiss complaint in furtherance of justice
-Motion to preclude defense under Evidence Code § 402
-Motion in limine to exclude reference at trial to quantities cited in SB 420

Defenses at Trial
-Elements
-Persons included
-Illnesses included
-Recommendation/Approval
  a. need not be in writing
  b. need not necessarily come from patients primary doctor
  c. need not necessarily be obtained prior to the charged conduct
-Expert witness
  a. dosages, yields
-Court support
  a. ASA
-Medical marijuana defenses other than that provided by CUA/MMPA
  a. Mistake of fact defense
  b. Medical Necessity defense
  c. Religious Freedom defense
  d. Vagueness

Below are a few links I created from handouts I was given during the training seminar.  I found them very helpful to understanding the background of a medical marijuana case as well as proceedings. 

How to Defend A Medical Marijuana Patient in California

Guidelines for the Security and Non-Diversion of Marijuana Grown for Medical Use

Landmark Decisions in Medical Marijuana Law


Based on a presentation and handouts given by the Americans for Safe Access of January 13th, 2011.