Saturday, February 20, 2010

VISTA: Judge orders new trial for failure to share evidence

Question: How do you tell the prosecutors from the prosecuted in San Diego?

Answer: Perhaps you can tell by seeing who refuses to follow the law.

See all posts about District Attorney Bonnie Dumanis.

VISTA: Judge orders new trial for failure to share evidence
Judge finds prosecutor failed to notify defense of fingerprint
North County Times
February 9, 2010

An ex-con facing life in prison for allegedly swiping two bikes will get a new trial because of a prosecutor's "willful omission" of sharing fingerprint evidence, a judge ruled Wednesday.

San Diego Superior Court Judge Harry Elias' ruling did not address the larger concerns raised by a senior member of San Diego County public defender's office in Vista of allegedly systemic failures by prosecutors to turn over evidence. Attorneys had used the theft case as a platform to air those complaints.

But the judge's 15-page ruling focused solely on the dispute in the criminal case against accused thief Kenneth Ray Bowles. At issue: a fingerprint on a pawn ticket for one of the stolen bicycles.

Elias declined to dismiss Bowles' case, finding the strength of other evidence against Bowles probably would have led a jury to find him guilty of stealing and pawning the bikes.

Late last fall, a North County jury convicted Bowles of theft and burglary. During a post-conviction proceeding, his attorney learned that one of the pawn tickets had a fingerprint that could not be definitively matched to Bowles.

The judge said in his decision there was a "significant and substantial violation" of the evidence rules when the prosecutor failed to tell the defense that the inconclusive finding had been left out of the report by the forensic fingerprint expert.

Elias found that the prosecutor, Vanessa DuVall, had "an affirmative duty" to share that information. Elias ordered a new trial for two of the three charges Bowles faced.

Elias said the "willful omission" of sharing inconclusive fingerprint evidence was not so severe that it would have changed the jury's finding of Bowles' guilt. Elias noted other evidence in the case, including a security camera recording of the theft and Bowles confession to investigators.

Elias also said he considered issuing an order of contempt for the deputy district attorney, but opted against it because a fine would not solve the damage done to Bowles.

Requests for comment by prosecutors were referred to Paul Levikow, spokesman for the San Diego County district attorney's office. Levikow declined comment because the criminal case is still pending. DuVall also declined comment.

Defense attorney Kathleen Cannon, a senior member of the Vista branch of the public defender's office, called the ruling "reasoned and thoughtful."

Late last month, Cannon told Elias in court that there had been "a continuing pattern of failure" to turn over evidence.

She pointed to two recent cases in which she said prosecutors violated the rules. In a gang rape case, the prosecutor did not give the victim's statements to defense attorneys. In another case, the prosecution is alleged to have failed to turn over a bloody knife ---- evidence that actually could have worked in favor of the defense.

Neither of those cases went to trial; the defendants took plea deals offered by prosecutors. But the bicycle case did reach a jury, and Bowles was found guilty...

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