Documente Academic
Documente Profesional
Documente Cultură
draft,
posted
online
to
satisfy
the
curiosity
of
my
friends.
This
is
what
happens
when
a
former
civil
litigator
who
spent
a
lot
of
time
in
federal
court
but
doesn’t
know
much
about
local
procedure
tries
to
fight
a
speeding
ticket.]
SUPERIOR
COURT
OF
CALIFORNIA,
COUNTY
OF
SAN
MATEO
TRAFFIC
DEPARTMENT,
CENTRAL
DIVISION
)
Case# 462602
PEOPLE
OF
CALIFORNIA
)
)
DEFENDANT’S
MOTION
TO
COMPEL,
v.
)
FOR
SANCTIONS,
AND
FOR
DISMISSAL
)
PAUL
GOWDER
)
)
Hearing
Date:
August
30,
20101
Defendant’s
Motion
to
Compel,
and
for
Dismissal
Pursuant
to
Local
Rule
9.9,
Defendant
sent
an
informal
discovery
request
to
the California Highway Patrol and the District Attorney on August 2 seeking the
materials that the prosecution is required to disclose by Penal Code section 1054.
He has received no response whatsoever, with the exception of one telephone call
from a functionary at a CHP office inquiring as to where the request should be
routed (to which Defendant responded). Defendant now moves the Court for:
b) as a sanction for failing to respond to discovery at all, and in order to
preserve Defendant’s right to a fair trial, an order barring the People from
admitting into evidence any materials or statements covered by that section
1
Local
Rule
9.9
requires
that
motions
to
compel
in
traffic
cases
indicate
a
hearing
date
before
the
trial
date.
As
indicated
in
the
enclosed
affidavit,
however,
Defendant
has
called
the
Clerk
and
been
told
that
the
clerk
will
not
calendar
a
hearing
date,
and
that
these
motions
are
ordinarily
heard
at
time
of
trial.
In
compliance
with
local
rules,
Defendant
requests
a
hearing
on
August
30,
and
will
appear
at
the
opening
of
court
on
that
date
to
ask
that
the
matter
be
heard
after
the
arraignments.
1
as
well
as
the
testimony
of
any
witness
who
have
not
been
disclosed,
or
whose statements or notes are covered by that section; and
c) in light of the fact that such an order would exclude all of the People’s
Defendant has been placed in a highly untenable position by the People’s
recalcitrance. He sent this discovery request shortly after arraignment. It is now
August 23, eleven calendar days before trial, and he has received no response to this
request, not even the courtesy of an objection. At this point, there is not even
enough time for Defendant to receive his discovery in time to prepare for trial. This
is so even though Defendant has done everything he can to obtain discovery quickly:
filing his request a few days after trial, contacting all the relevant agencies to urge a
response to that request, and filing this motion immediately after it has become
evident that no response will be forthcoming. Even under the best of conditions, it
would be unrealistic and unreasonable to expect a ruling in less than a week. It
would be equally unrealistic to expect the People, after being ordered to comply
with the discovery laws, to actually get the required materials into Defendant’s
hands in less than another week. And by that route, we arrive at a date well after the
actual trial date. The most optimistic possible outcome is Defendant only finally
receiving his discovery, on, perhaps, the morning of trial, with no opportunity
2
In
fact,
matters
are
much
worse
than
this.
Defendant
called
the
clerk
to
ask
how to get a motion to compel discovery on the calendar for a hearing, and got the
response that there was no way to do so – that this court ordinarily simply handles
such motions on the day of trial. This procedure, while doubtless efficient, leads to
the same unhappy response: Defendant having no opportunity to prepare for trial,
Nor would continuing the trial solve anything. The arraignment in this case
was on July 26. The current trial date, September 3, is 39 days after the
arraignment. Penal Code section 1382, requires the Court to dismiss any infraction
not tried within 45 days of his arraignment. Thus, Defendant is entitled either to
dismissal or to a trial by September 9. As September 3 is a Friday, this gives the
court a four-‐day window in which the trial could be continued without violating
Defendant’s speedy trial rights. Even assuming that a trial could be rescheduled in
that extremely narrow window, Defendant would still have a grossly inadequate
time to prepare, thanks to the People’s failure to comply with their procedural
obligations. That is, Defendant would have a grossly inadequate time to prepare
even assuming – as is unlikely in the extreme – that the People could get it together
in time to provide him with the discovery to which he is entitled between being
ordered to do so on September 3 and a trial that would be, at a minimum, six days
later.
Perhaps there would be a hope for the People to get it together and provide
discovery were it represented by counsel at the trial date. But Defendant is given to
understand that the ordinary practice is for the District Attorney to not send a
3
prosecutor,
but
instead
for
the
citing
police
officer
to
simply
show
up
unescorted
and give testimony on his own. Thus, unless Defendant is mistaken about this
practice or the District Attorney decides to make an exception, a police officer will
have to report the court’s order to his superiors, at which point it will wind its way
up the bureaucracy – no attorney for the People will be present to prod the
This woeful absence of the involvement of counsel in any stage of these
proceedings is to blame for the failure of the People to respond to discovery at all.
The District Attorney’s office does not take any action when a discovery request is
received in a traffic case, simply forwarding it to the Clerk. Consequently, no lawyer
has looked at Defendant’s request, instructed any documents or witnesses to be
disclosed, or reviewed the request to determine which, if any, parts of it are
objectionable and which must be complied with. As far as can be discerned from
Defendant’s futile attempts to get some kind of response, and many telephone calls,
his informal discovery request has fallen into a Kafkaesque bureaucratic limbo
within the California Highway Patrol, which, acting without any supervision from
counsel whatsoever, has simply not bothered to give discovery. Presumably, if some
lawyer had at some point become involved, he or she would have informed the
appropriate officials (whoever they may be: Defendant is completely in the dark
about the CHP’s internal structure or division of responsibility) at the California
Admittedly, Defendant’s request for informal discovery is more complex than
is perhaps typical in traffic cases. However, each specific request falls under the
4
category
of
exculpatory
evidence,
which
section
1054
specifically
requires
to
be
provided. Part of his planned defense, for example, relies on technical claims about
the inability of police radar to accurately record his speed under the conditions
under which he was citied – a defense that requires evidence about the operation of
that device to establish, evidence that is held by the California Highway Patrol, and
is referred to in items 2, 3, 4, 7, 8, etc. of his discovery request. Others directly track
the language of the statute – item 12 tracks section 1054.1(c) and (f), item 13 tracks
1054.1(f), item 14 uses the exact language of 1054.1(a), item 15 tracks 1054.1(b),
etc. Even if the People think that other items in his discovery request are
objectionable, there is no possible question that he is entitled to compliance with
those items that are directly drawn from the language of the statute. That the
People are obliged to provide those materials even if they do not provide anything
else. The CHP would have known that, and, presumably, complied with it while
objecting to any allegedly objectionable parts, if they had been supervised by an
attorney.
While Local Rule 9.9 specifies that informal discovery requests are to be
directed to “the police agency that issued the citation” (i.e., the California Highway
Patrol), Penal Code section 1054.1 rests the responsibility for providing discovery
on “the prosecuting attorney,” i.e., the District Attorney, and it is the District
Attorney’s failure to supervise the execution of his statutory responsibilities by
police agencies that has led us to this pass. While it is true that the People are not
obliged to supply a prosecutor in person at every traffic infraction,2 this does not
2
Thus
was
the
holding
in
People
v.
Marcroft,
6
Cal.App.4th
Supp.
1
(1992).
5
mean
that
the
District
Attorney
can
neglect
the
responsibility
to
supervise
the
conduct of prosecutions, even at a distance, or that it is fair or consistent with due
process for Defendant to be prejudiced by the failure to provide such supervision.
Ironically, Defendant actually asked the Court, at his arraignment, if the
September 3 trial date would give him enough time to secure discovery from the
People after the arraignment. The Court optimistically assured him that he would
have plenty of time – an assurance that would doubtless have been true, if the
People had made any effort whatsoever to comply with their obligations under
California law.
In another traffic infraction case, the Court of Appeal had the following to say
So
long
as
traffic
violations
are
adjudicated
in
court,
the
letter
and
spirit
of
misdemeanor
procedure
should
be
followed.
Alleged
traffic
violators
are
now
offered
an
opportunity
to
contest
the
validity
of
their
citations
by
a
court
trial.
This
is
often
the
only
contact
citizens
have
with
the
court
system.
It
is
important
that
the
proceedings
appear
to
be
fair
and
just.
An
appearance
of
arbitrariness
is
to
be
avoided,
even
in
the
crowded
conditions
of
traffic
court
proceedings.
People
v.
Kriss,
96
Cal.App.3d
913,
921
(1979).
This principle is not consistent with permitting traffic court defendants to be
Sanctions Required
Pursuant to Penal Code section 1054.1, the remedies for the People’s failure
to make discovery are in the Court’s discretion and are “including, but not limited to,
6
of
a
witness
or
the
presentation
of
real
evidence,
continuance
of
the
matter,
or
any
other lawful order.” While the statute goes on to provide that exclusion of witness
testimony is a last resort, that last resort has been reached.
Penal code section 1054.1 expressly requires the People to disclose “[t]he
names and addresses of persons the prosecutor intends to call as witnesses at trial”
and “[r]elevant written or recorded statements of witnesses or reports of the
statements of witnesses whom the prosecutor intends to call at the trial.” That
section plainly requires the disclosure of the name and address of the citing officer
(if, in fact, the People intend for him to testify), as well as his recorded notes –
material that Defendant needs in order to prepare for trial. Without these materials
he does not know, for example, how the citing officer alleges to have measured his
speed (Did he use a radar device? Did he “pace” him? Did he make a visual estimate
of his speed?), whether or not the citing officer alleges that he made any admissions
about his speed or any other facts (a disclosure expressly required by section
1054.1(b)), or anything else that might enable him to go into trial other than utterly
blind. Under such circumstances, how can he be expected to put on a defense?
Nor is Defendant either obliged or inclined to surrender his statutory speedy
trial rights to accommodate the derelictions of the People. And the People’s failure
to comply with their discovery obligations hardly constitutes good cause for the
Court to extend the statutory 45 day period on its own initiative.
What, then, is to be done? Defendant’s statutory (and constitutional) speedy
trial rights cannot be abrogated. Defendant’s statutory right to discovery cannot be
7
Defendant
to
prepare
for
trial
on
the
spot
or
on
no
more
than
a
couple
days
notice
would, in addition to denying him rights expressly provided by statute, also deny
him a fair trial and run afoul of the principles of due process, as well as the
principles expressed in Kriss. Holding the District Attorney or the California
Highway Patrol in contempt, while it might offer Defendant some cathartic relief,
will not offer him a fair trial untainted by surprise evidence.
Under such circumstances, no lesser sanction than the exclusion of all
evidence, statements, and witnesses that should have been disclosed will preserve
Since the People are required to disclose all witnesses that will appear, as
well as all evidence to be admitted, excluding the improperly undisclosed evidence
means excluding all the People’s evidence. And excluding all the People’s evidence,
in light of the burden of proof, means that this prosecution must be dismissed.
Respectfully
submitted,
August
23,
2010:
.
_______________________________________
Paul
Gowder
8
SUPERIOR
COURT
OF
CALIFORNIA,
COUNTY
OF
SAN
MATEO
TRAFFIC
DEPARTMENT,
CENTRAL
DIVISION
)
Case# 462602
PEOPLE
OF
CALIFORNIA
)
)
DEFENDANT’S
AFFIDAVIT
IN
SUPPORT
v.
)
OF
MOTION
TO
COMPEL,
FOR
)
SANCTIONS,
AND
FOR
DISMISSAL
PAUL
GOWDER
)
)
State
of
California,
County
of
_______________________
BEFORE
ME,
the
undersigned
Notary,
_______________________________________________
on
this
______
day
of
August
2010,
personally
appeared
before
me
__________________________________________________,
who
being
by
me
first
duly
sworn,
on
________
his
oath,
deposes
and
says:
1. I am over 18 years old and a resident of Santa Clara County, California. I swear,
certify, and affirm that the following is true and correct, under penalty of perjury.
2. On August 2, 2010, I mailed an informal discovery request to the California Patrol
9
San
Mateo
County
District
Attorney
3. The attached letter is a true copy of the informal discovery request sent to those
offices, save for a typographical error in a zip code that was corrected by hand. The
attached return receipt is the return receipt I received from the U.S. postal service
4. I have received no response whatsoever to my discovery requests, except for one
telephone call on August 4 and one on August 5 from a CHP employee from the
10
Golden
Gate
Division
named
Karen,
who
said
her
supervisor’s
name
is
Vera,
and
whose number is 707-‐648-‐4180. Karen said that she contacted me to ask for the
name of the citing officer so that she could route the request appropriately. I gave
her that officer’s name and then heard nothing more from the CHP.
5. I called the Clerk’s office at 650-‐573-‐2617 on August 20, 2010, and was told that I
could not calendar a motion to compel discovery in a traffic court case – that such a
motion would simply be handed to the Court and ordinarily be heard on the trial
date.
6. I called the District Attorney’s office at 650-‐363-‐4636 on August 20, 2010. I
spoke to a woman going by the name Terry, who was the supervisor of the person
who originally answered the phone, and who declined to give her name. Terry
confirmed to me what the person who answered the phone transmitted as from her:
the District Attorney’s office does not take any action on informal discovery
requests received in traffic cases, but simply forwards them to the Clerk.
7. I called the California Highway Patrol’s Redwood City office at 650-‐369-‐6261 on
August 20, 2010, and was told that the person whose responsibility it is to handle
informal discovery requests, one Kelly Kettell, was out of the office. I left her a
voicemail inquiring as to the status of my discovery request. As of the filing of this
11
8.
I
called
the
CHP
Golden
Gate
Division’s
central
office
at
707-‐648-‐4180
on
August
20, 2010. The person answering the phone had no idea how informal discovery
requests were handled, and, to all appearances, did not even know what one was. I
eventually was transferred to the voicemail of one Vera, who I assume to be the
same Vera mentioned in #3 above. I left her a voicemail inquiring as to the status of
my discovery request. As of the filing of this motion and affidavit, I have had no
response.
9. At this point, I have no idea what testimony or evidence might be offered against
me at trial, beyond the bare information contained on my copy of the citation. I also
have no idea what has happened to my informal discovery request. I have no way of
________________________________________
Paul
Gowder
[date]
51
Dudley
Ln.
#213
Stanford,
CA
94305
Subscribed
and
sworn
to
before
me,
this
____________
day
of
August,
2010.
___________________________________
NOTARY
PUBLIC
___________________________________
Notary
Public
My
commission
expires:
____________
12