LEGALUPDATES.COM

• The Private Search Doctrine
• Google’s Computerized Hashing Technology
• Child Pornography and the Internet

A law enforcement officer opening a pornography suspect’s e-mail attachments, without a search warrant, is an illegal search.  The fact that an electronic communication service provider has already concluded that the e-mail attachment contains child pornography, determined via an electronic hashing system, without having actually viewed the e-mail attachments, does not make the subsequent law enforcement search lawful. In such a case, the “private search doctrine” is inapplicable.

Defendant Luke Noel Wilson was into child pornography, as evidenced by his habit of uploading images of young girls in sexually compromising situations into his Google Gmail account as e-mail attachments.  Four instances of child pornography were discovered by Google in defendant’s e-mails, resulting in his federal prosecution in this case.  (He was also prosecuted and convicted in state court; see People v. Wilson (Oct. 21, 2020) 56 Cal.App.5th 128 [Review denied by the California Supreme Court at 2021 Cal. LEXIS 485; Jan. 20, 2021], and “Note,” below.)  Although electronic communication service providers (aka; Internet Service Provider,” or “ISP”), such as Google, are not required by law to “affirmatively search, screen, or scan” for violations of federal child pornography laws, many do so anyway as a means of “reduc(ing) . . . and prevent(ing) the online sexual exploitation of children.”  Should an ISP discover child pornography sent through its system, however, that ISP is directed by federal law, “as soon as reasonably possible after obtaining actual knowledge” of “any facts or circumstances from which there is an apparent violation of . . . child pornography [statutes],” to “mak[e] a report of such facts or circumstances” to the “National Center for Missing and Exploited Children” (or “NCMEC”). (18 U.S.C. § 2258A(a))  NCMEC is then required to forward that information (in what is known as a “CyberTip”) to the appropriate law enforcement agency for possible investigation. (18 U.S.C §§ 2258A(a)(1)(B)(ii), (c)).  This is what happened in this case.  Google has a computerized screening system, as described below, that was triggered when defendant uploaded into his Gmail account four images of apparent child pornography.  No one at Google had to open or view defendant’s e-mails in order to determine he was receiving child pornography.  This is because Google has developed a “proprietary hashing technology” to identify apparent child pornography without having to individually open or look at a customer’s actual e-mail.  This, in a nutshell, is how it works:  First, a team of Google employees has been trained by experts on the federal statutory definition of child pornography and how to recognize it when they see it.  As part of their training, these employees have viewed actual images of child pornography, giving each type of pornography a specific “hash value” which is added to a repository of hashes electronically stored by Google.  This hash value is generated by a computerized algorithm and consists of a short alphanumeric sequence that is considered unique to the computer file.  Google “apparently” (the record was not clear) stores only the hash values of images identified as apparent child pornography, but not the actual images.  Also, the various electronic service providers—including Google—have established four categories of child pornography; “A1” for a sex act involving a prepubescent minor; “A2” for a lascivious exhibition involving a prepubescent minor; “B1” for a sex act involving a pubescent minor; and “B2” for a lascivious exhibition involving a pubescent minor.   Should someone, such as defendant, then upload child pornography, Google’s system automatically compares the previously stored hashes to the hashes established by the customer’s uploaded e-mail.  Google is automatically notified if this hash comparison determines that the uploaded e-mail contains child pornography, and establishing which category it is.  (The state reported decision in People v. Wilson (Oct. 21, 2020) 56 Cal.App.5th 128, contains a more detailed version of the description of this system for detecting child pornography.  See California Legal Update, Vol. 25, #14 [Dec. 30, 2020].)  In defendant’s case, no one at Google actually opened or viewed defendant’s e-mail attachments, the determination that they contained child pornography being based solely upon the automated assessment that the images defendant uploaded were the same as images the previously trained Google employees had earlier viewed and classified as Category A1 child pornography (i.e., a sex act involving a prepubescent minor), as noted above.  A report was then made by Google to NCMEC which—also without opening or viewing the files—sent to the San Diego Internet Crimes Against Children Task Force (“ICAC”), it being determined that the IP address of the computer receiving the pornography was located in the San Diego region.  At the Task Force, Agent Thompson opened defendant’s e-mail attachments for the first time, verifying that defendant’s Gmail e-mails did in fact contain child pornography.  This was done without a search warrant.  Based upon this, Agent Thompson applied for two warrants—in which the pornographic attachments were described in detail—to search both defendant’s e-mail account and his home.  A search of both resulted in the seizure of large amounts of child pornography, resulting in the instant prosecution in federal court.  Defendant’s motion to suppress the seized child pornography was denied by the federal district court trial judge.  Convicted of possession and distribution of child pornography and sentenced to 11 years in prison with 10 years of supervised release, defendant appealed.

The Ninth Circuit Court of Appeal reversed.  The issue in this appeal was whether the so-called “private search doctrine” excused Agent Thompson’s warrantless opening and viewing of defendant’s e-mails, viewing defendant’s child pornography for the first time.  The lower federal district court, in denying defendant’s motion to suppress, ruled that Agent Thompson acted lawfully.  (See United States v. Wilson (June 26, 2017) 2017 U.S. Dist. LEXIS 98432.)  In a parallel prosecution, California’s Fourth District Court of Appeal also ruled that the private search doctrine excused Agent Thompson’s warrantless viewing of defendant’s e-mails.  (People v. Wilson, supra.)  Other federal circuits have also found the private search doctrine to apply in similar situations, justifying an investigator’s later actual warrantless opening of the files.  (See United States v. Ringland (8th Cir. 2020) 966 F.3rd 731; United States v. Reddick (5th Cir. 2018) 900 F.3rd 636, and United States v. Miller (6th Cir. 2020) 982 F.3rd 412.)  The Ninth Circuit here disagreed with all of the above (citing one case which agreed with the Ninth Circuit’s analysis; United States v. Ackerman (10th Cir. 2016) 831 F.3rd 1292.).  Under the “private search doctrine,” it is a rule that when a private party (i.e., non-law enforcement) opens a container and views material (typically, contraband) under circumstances that had the private party been a law enforcement officer, it would have been considered a Fourth Amendment search, and then that container is passed onto the government (e.g., law enforcement) which replicates the opening and viewing of the container and its contents already viewed by the private party, the Fourth Amendment is not violated.  So long as law enforcement restricts its inspection and viewing to what has already been seen by the private party (i.e., “does not exceed the scope” of the prior viewing), then this action comes within the private search doctrine, and is lawful. (See Coolidge v. New Hampshire (1971) 403 U.S. 443; and United States v. Jacobsen (1984) 466 U.S. 109.) The question here is whether Google’s (the private party’s) hash identification system, without anyone from Google actually opening and viewing the defendant’s child pornography contained in his e-mail attachments, is sufficient to trigger the private search doctrine, thus allowing for a law enforcement officer to later open up those same e-mails and view their contents without a search warrant.  The Ninth Circuit, noting that the government bears the burden of proof on this issue, ruled that it does not in that Agent Thompson’s warrantless opening of defendant’s e-mail attachments exceeded the scope of Google’s private computerized hash-system search (such as it was) of those e-mails.  In rejecting the Government’s argument that defendant had lost any expectation of privacy when he received and sent pornography via e-mail, the Court ruled as follows:  “First, the government search exceeded the scope of the antecedent private search because it (i.e., Agent Thompson’s search) allowed the government to learn new, critical information that it used first to obtain a warrant and then to prosecute Wilson. Second, the government search also expanded the scope of the antecedent private search because the government agent viewed Wilson's email attachments even though no Google employee—or other person—had done so, thereby exceeding any earlier privacy intrusion.” Finding a “large gap” between what Google and NCMEC knew about what defendant had in his e-mails, when compared to the specific detail Agent Thompson was able to learn upon opening the e-mails, the Court found the private search exception to be inapplicable to this situation.  Defendant’s Fourth Amendment rights were therefore violated and his motion to suppress should have been granted.

The Court goes on and on attempting to justify its conclusions here.  But from the very beginning, the Court telegraphs its dislike for the “private search doctrine,” cherry picking comments from various cases referring to it as an “unsettling” doctrine, “the subject of concern,” and “a narrow doctrine with limited applications.”  (See pg. 968 of the decision.)  So you knew right away the Court was going to rule it as inapplicable to this type of situation despite some very significant differences of opinion by the California Court of Appeal and various other federal circuits.  It was just a question of how the Ninth Circuit was going to reach the conclusion it wanted, taking some 19 rambling pages to accomplish that goal.  Despite this Court’s dislike of the private search doctrine, the contrary case decisions make the perfectly logical argument that a hash-type electronic scanning of a person’s e-mail attachments is really no different than a human being opening and viewing those same attachments.  It’s just done electronically, scientifically, and maybe even more accurately from a consistency standpoint.  As such, this issue is certainly ripe for appeal to the U.S. Supreme Court so that the whole country is on the same page.  The Ninth Circuit did hint that it might have helped had the record been a bit more complete, such as by a better description of the training materials used by Google’s pornography experts, as well as the “exact manner in which hash values are assigned to either the original photograph or the ones deemed to replicate them.” (pg. 965)  The Court also noted that Agent Thompson testified that San Diego’s ICAC now (since this case) obtains a search warrant before opening a CyberTip in those cases where the provider has not already opened and viewed the e-mail attachments in issue.  (pg. 965, fn. 3.)  Had Agent Thompson obtained a warrant to open defendant’s e-mails in this case, it’s likely there would not have been an issue. 

• Use of an Undercover Officer Placed into a Jail Cell with a Defendant:
• Intentional Miranda Violations:
• Trombetta/Youngblood Failure to Collect or Retain Evidence:
• Brady v. Maryland; Brady Error:
• Belated Trial Discovery:
• Medina Error and Coerced Testimony:
• Motions for a Mistrial and Motions to Dismiss:

It is Sixth Amendment violation to place an undercover officer into a jail cell with an already charged defendant for the purpose of pumping that defendant for incriminating statements.  Intentional Miranda violations will result in the suppression of any statements made by the defendant.  The failure of law enforcement to collect and/or preserve relevant evidence may, in some circumstances, result in adverse court rulings.  Failure to provide a defendant with the details of plea bargains with co-defendants’ constitutes Brady error, at least when it includes a requirement that the co-defendants testify against the defendant.  Failing to properly record and preserve a co-defendant’s interview with law enforcement, at least when that co-defendant is expected to testify against the defendant, may be a constitutional due process violation.  Late discovery provided to the defense may result in sanctions imposed upon the prosecution.  Requiring a co-defendant, as a condition of a plea bargain, to testify truthfully, does not, by itself, constitute “coerced testimony;” i.e., that he testify to certain facts irrespective of their truth.  Egregious errors by the prosecution may result in the dismissal of a criminal case, depending upon whether, as a result, the defendant will be able to obtain a fair trial.

In a scenario reminiscent of a Three Stooges episode, co-defendants Finley Fultz (referred to herein as “defendant”), Nathan Philbrook and Daniel Devencenzi (“co-defendants”), all residents of the State of Nevada, decided it would be a neat idea to cross over into California (County of Nevada, specifically) to steal marijuana from some of the growers there.  A fourth co-conspirator was Amber N—Philbrook’s wife—who limited her assistance to finding potential targets via “Google Earth,” pinpointing specific greenhouses by scanning aerial satellite views of northern California.  Philbrook and Devencenzi had already successfully stolen marijuana before.  On July 6, 2014, defendant asked if he couldn’t get in on the fun. They decided to target a greenhouse in Penn Valley, California, County of Nevada, that Philbrook and Devencenzi had hit just a week earlier.  So with defendant and Philbrook in defendant’s truck, and Devencenzi following them in his own truck, the Three Stooges headed off to steal the products of another’s labors.  Cellphone records showed that Philbrook and Devencenzi stayed in touch during this trip, with their cellphones pinging off cell towers on the way to, and near, the greenhouse.  There was no available record of defendant’s cellphone usage during this time span in that he had a cellphone obtained through Cricket Wireless which retained usage records for only 180 days.  Reaching their target at some time just before 1:00 a.m. in the morning of July 7th, Philbrook—armed with an AR-15style handgun equipped with a laser light—entered the greenhouse by the back door.  Devencenzi waited outside the back door.  Defendant—also armed, but with an AR-15 rifle—walked around to the front of the greenhouse.  Unbeknownst to any of them, the greenhouse owner had hired a new employee—named Isaac Zafft—who was asleep at the time inside the greenhouse.  Woken up by Philbrook’s entry through the back door, Zafft fled out the front where defendant—perhaps startled by Zafft’s sudden appearance—shot him four times at close range (2 feet), killing him.  Upon their return home, defendant and Philbrook told Amber what defendant had done.  During the subsequent investigation by the Nevada County Sheriff’s Department, investigators were alerted to defendant’s, Philbrook’s, and Devencenzi’s involvement in Zafft’s murder by an anonymous tip made several months after the murder.  It was soon determined that Amber was the anonymous tipster.  Amber was interviewed three times by an investigator, each interview being recorded.  In exchange, she was provided with immunity.  Amber told the investigator that Philbrook, Devencenzi, and defendant were responsible for Zafft’s murder, with defendant being the actual shooter, while also appearing to minimize her own involvement. During one of the interviews, photographs of her shoes (or shoeprints made from those shoes) “may have (been) taken” (likely for comparison purposes to footprints left at the murder scene).  All three defendants were subsequently arrested and interviewed. When defendant was interrogated by investigators, the questioning took place in three segments; a portion before defendant was informed of his Miranda rights, a portion after defendant was advised of his rights and waived them, and a portion after defendant invoked his right to counsel while being interrogated, the investigator ignoring the invocation. In pretrial motions, the trial judge suppressed all his statements, finding them to be in violation of his Miranda rights. The People did not contest this ruling on appeal and is therefore not further discussed.  All three defendants were charged in state court on July 12, 2016, alleging that they murdered Zafft during a robbery, with the added allegation that defendant personally used a firearm.  Shortly after the filing of a complaint, the Nevada County District Attorney’s Office had the clever idea of placing an undercover law enforcement officer in defendant’s jail cell for the express purpose of eliciting from him incriminating statements concerning the murder.  In later pretrial motions filed by defendant, this was belatedly agreed by the prosecution to have been a violation of defendant’s Sixth Amendment right to counsel (See People v. Engert (1987) 193 Cal.App.3rd 1518.), so is also not discussed further herein.  Before trial, co-defendants Philbrook and Devencenzi pled guilty based upon their agreement to testify against defendant. During defendant’s trial, a number of problems hampered the prosecution, as discussed below.  One of the issues raised during trial stemmed from the prosecution, on the first day of trial, having the Sheriff’s Department request a new search warrant for defendant’s cellphone records, going to a different judge than the trial judge in this case.  This was the second search warrant issued for defendant’s cellphone records. This one, however, revealed additional information not known before, tending to prove that defendant’s phone had connected with Philbrook’s phone before and after their ill-fated trip to California.  Defendant was not made aware of these new records until the morning that the prosecution sought to introduce expert testimony concerning these records.  Upon defendant’s objection, the trial court ruled this to be a “discovery violation.”  As a result of this and other problems (as discussed below), the trial court initially granted defendant’s motion for a mistrial (meaning they would have to begin the trial all over again with a new jury).  However, after further motions, the judge granted defendant’s motion to dismiss (meaning the case was over and the defendant would go free).  The People appealed.

The Third District Court of Appeal reversed the trial court’s ruling that dismissal of the case was necessary, but otherwise agreed with the sanctions taken against the prosecution, criticizing the “level of gamesmanship” engaged in by the prosecution.  In an extremely confusing recitation of the facts and circumstances of this case, the Court made a number critical observations concerning how this case was presented: 

(1) The Missing Photographs of Amber’s Shoes/Shoeprints and recorded Interview:  When initially interviewed, Amber was asked by the investigators if they could photograph her shoes.  (It was unclear in the record whether it was photographs of Amber’s shoes that were in issue, or photos of the shoeprints made from those shoes.  It was likely both.)  Although police reports made reference to these photos, it was never established on the record whether photos were ever actually taken.  Either way, by the time of defendant’s scheduled preliminary examination, those photographs—if they existed at all—were missing.  The investigator also testified that he interviewed Amber three times.  However, the recording of the second interview—which should have been booked into evidence with the other two—could not be found.  The investigator further gave conflicting accounts of when it was that he went looking for the missing recording.  With Amber’s credibility being an issue in this case, the trial court found that both of these items of evidence were extremely important to the defense. As to the missing interview, the trial court held that the loss of this evidence violated defendant’s constitutional rights. [See discussion under section (3) “The Devencenzi and Philbrook Recorded Interviews,” below, on the applicability of Arizona v. Youngblood, infra.]  As for the missing photographs of the shoes (or shoe prints), the trial court noted that the prosecution failed to even address in its written response these allegedly lost photos.  As a result of all this, the trial judge specifically make what the Appellate Court referred to as “bad faith findings” concerning the investigator’s inconsistent testimony regarding his apparently sloppy handling-of-evidence practices.  The Appellate Court deferred to the trial judge’s credibility findings (as it must), and concluded that substantial evidence supported the trial court’s negative comments as they related to these issues.

(2)  The Devencenzi and Philbrook Plea Bargains:  In exchange for favorable prison sentences, Devencenzi and Philbrook both pled guilty to reduced charges. As a condition of their plea bargains, both co-defendants agreed to testify for the prosecution, and to do so “truthfully.”  Defendant was made aware of all this.  What he was not made aware of were e-mails between the prosecution and the two co-defendants’ attorneys indicating that this plea bargain was a “package deal;” i.e., that they both had to accept the deal for it to be effective for either.  Whether or not the plea bargain was a package deal was not contained in the written change-of-plea forms used in court.  Per the prosecutor’s testimony offered up at the hearing on this issue, the package deal aspect was apparently an afterthought, not even set out clearly to the two co-defendants, and resulted in a misunderstanding that, the prosecutor agreed, should have been clarified.  Also contained in the e-mails sent to Philbrook’s and Devencenzi’s attorneys was a requirement that they each stipulate in court to a factual basis which was to include that they all—including defendant—participated in the robbery, and that it was defendant who shot and killed Zafft.  Philbrook’s factual basis statement—attached to his written change of plea form—contained all these facts.  Devencenzi’s did not, stating only that he saw Philbrook and defendant walk separately around the greenhouse and that he ran away when he heard gunshots.  At defendant’s subsequent trial, Philbrook testified to the circumstances of their plan to steal marijuana and what happened while at the greenhouse, as described in the “Facts,” above. Devencenzi died of cancer by the time of trial.  But his sworn statement obtained by way of a pre-trial conditional examination was read to the jury, describing the events before and after the murder as well as what he saw and heard at the greenhouse.  Per Devencenzi’s statement, he was the only person unarmed. Also per his statement, he observed defendant walk around to the front of the greenhouse as Philbrook entered at the back.  He then heard a gunshot which sounded like it came from a long rifle.  Diving to the ground, Devencenzi heard three more shots, causing him to get up and run back to his truck, hearing one more gunshot as he did so.  Per his statement, Devencenzi claimed to have “no idea who fired the weapon.”  As for the failure of the prosecution to provide the defendant’s attorney with the information contained in the e-mailed plea negotiations, as well as copies of the e-mails themselves, the Appellate Court agreed with the trial judge that both omissions constituted “Brady error.”  (Brady v. Maryland (1963) 373 U.S. 83.)  On appeal, the People argued that failing to provide the above—if it was error at all—was not a “material” violation, and thus did not rise to the level of “Brady error.”  Under Brady; “[t]he prosecution has a duty under the Fourteenth Amendment's due process clause to disclose evidence to a criminal defendant when the evidence is both favorable to the defendant and material on either guilt or punishment.” This duty exists even though there has been no request by the accused.  This has been held to encompass both impeachment evidence as well as exculpatory evidence.  Lastly, the duty extends to all “material evidence,” even if known only to police investigators and not to the prosecutor.  As a result, “the individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government’s behalf in this case, including the police.”  (People v. Salazar (2005) 35 Cal.4th 1031, 1042.)  On the issue of “materiality,” “if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different,” then the information at issue is considered to be material.  (See Association for Los Angeles Deputy Sheriffs v. Superior Court (2019) 8 Cal.5th 28, 40.)  The Appellate Court here held that “substantial evidence” supported the trial court’s conclusions to the effect that both the fact of the offered package deal and the e-mails that reflected that fact were material under Brady, and should have been revealed to the defendant prior to trial.  Thus, per the Court, the prosecution did in fact commit Brady error.

(3) The Devencenzi and Philbrook Recorded Interviews:  As noted above, both Devencenzi and Philbrook submitted to recorded interviews conducted by the “prosecution team” (i.e., prosecutors and investigators).  After the interviews, when the video recordings were retrieved so that they could be provided to the defense in discovery, it was discovered that some unknown person had apparently muted the audio portions of both interviews.  An investigator therefor wrote a summary of each interview as he remembered them, highlighting any inconsistencies he thought existed between Philbrook’s and Devencenzi’s written statements and their recorded interviews.  This report was provided to defendant in pre-trial discovery.  The defendant argued that this was not enough, and the trial court agreed. The trial court judge ruled that the People had “unconstitutionally” muted these interviews, and did so in “bad faith.”  Citing California v. Trombetta (1984) 467 U.S. 479, the People argued on appeal that the trial court erred in so holding.  The Appellate Court upheld the trial court’s conclusions on this issue.  It is a general rule that “Due Process does not impose upon law enforcement . . . (an) absolute duty to retain and preserve all material that might be of conceivable evidentiary significance in a particular prosecution,” but rather only to “evidence that might be expected to play a significant role in the suspect's defense.” “Under Trombetta, law enforcement agencies must preserve evidence only if the evidence possesses exculpatory value that was apparent before it was destroyed and if the evidence is of a type not obtainable by other reasonably available means.” Although law enforcement officers have a duty to preserve exculpatory or potentially exculpatory evidence in their possession, “due process does not require the police to collect particular items of evidence. . . . The police cannot be expected to “gather up everything which might eventually prove useful to the defense.” As a rule, therefore, Trombetta does not require law enforcement to gather all evidence that might be of use to the defense.  However, this is not a blanket rule.  There may be an appropriate case where the failure to collect evidence does in fact warrant due process considerations (People v. Montes (2014) 58 Cal.4th 809, 838.), such as where potentially useful evidence was destroyed as a result of bad faith (See Arizona v. Youngblood (1988) 488 U.S. 51.)  The Court agreed with the trial court’s conclusion that this is one of those cases.  Specifically, the Court held that the trial court’s ruling to the effect that the loss of the audio portion of Devencenzi’s and Philbrook’s interviews greatly hampered defendant’s ability to present a defense.  With no actual physical evidence tying defendant to the scene of the murder, Philbrook’s and Devencenz’'s interviews were extremely important; highly relevant as potentially impeaching evidence.  The Court therefore agreed with the trial court’s finding of bad faith under the facts of this case, providing the necessary “substantial evidence” to support the trial court’s determination that the prosecution violated defendant’s due process rights by failing to audio record Philbrook's and Devencenzi's interviews.  “The government’s failure to audio record the interviews of Devencenzi and Philbrook served to paint the credibility picture of defendant’s accomplices the government wanted the jury to accept. The impeachment potential of the audio of the interviews was clear at the time the interviews occurred and the audio was muted.”  Steps should have been taken to insure that the interviews were properly recorded, both visual and audio.  They were not.  Accordingly, the Court held that “substantial evidence supports the trial court’s finding the government unconstitutionally muted the interviews with Philbrook and Devencenzi.”

(4)  Belated Discovery of Defendant’s Cellphone Records:  As noted under the “Facts,” above, the prosecution sought to introduce expert testimony concerning cellphone records on the same day that the discovery concerning those records was provided to the defense.  These records revealed additional information not known before, tending to prove that defendant’s phone had connected with Philbrook’s phone before and after their ill-fated trip to California.  The trial court judge determined this late discovery to be a “discovery violation.”  The prosecution conceded that this was in fact a discovery violation and, as a result, stipulated to exclusion of defendant’s cellphone records at the trial. The trial court went even further, however, also excluding other related evidence in Philbrook’s phone records on the theory that the late discovery had led to further investigation of Philbrook’s cellphone records, which in turn lead to the discovery of some additional incriminating evidence.  The trial court further found that defendant was significantly prejudiced by this surprise evidence given that reports completed by the prosecution up to this point gave the misleading impression that nothing relevant to defendant’s guilt had been revealed in the 700 pages of the previously-disclosed cellphone records. The trial court also found the prosecution had sought a tactical advantage in providing the late discovery in issue here, given the fact that this type of search should have occurred long before its results were presented as evidence. The Appellate Court found no abuse of discretion in the trial court’s findings on this issue.

(5) Medina Error:  Pursuant to the case of People v. Medina (1974) 41 Cal.App.3rd 438, it has been held that the use of “coerced testimony” results in “a denial of the fundamental right to a fair trial in violation of federal constitutional principles.”  So called “Medina error” occurs when a witness is required to testify to specific facts, typically as a condition of his own plea bargain, whether or not what he’s testifying to is the truth.  Testimony under such circumstances is considered to be “coerced,” and a due process violation if admitted into evidence.  But to be Medina error, it must be shown that “the (plea) bargain (was) contingent on the witness sticking to a particular version” of his or her story.  (People v. Reyes (2008) 165 Cal.App.4th 426, 434.) However; “(a) witness who testifies pursuant to a plea agreement does not give coerced testimony if the agreement requires only that the witness testify truthfully and completely and does not require that the witness testify in a particular fashion.”  The trial judge in this case ruled, as a part of the his reason for dismissing the case (see below), that the People committed Medina error when Devencenzi and Philbrook were offered plea bargains in exchange for their testimony to the effect that it was defendant who was the one who killed Zafft.  The Appellate Court disagreed.  Per the Court: “The written plea bargains and e-mails required Devencenzi and Philbrook to testify only to the truth.”  They were not tied into any specific pre-determined version of what defendant did or did not do.  The Court could not find any explicit requirement that their testimony be consistent with their earlier stated version of the facts, but rather only that they tell the truth.  As such, no Median error occurred.

(6) Mistrial and Dismissal Motions:  At this point, given all the above issues, a frustrated trial judge had had enough.  Initially, the judge granted defendant “mistrial motion,” necessitating the dismissal of the jury and a new trial.   Defendant also filed several “motions to dismiss” the case in its entirety.  The first time, defendant’s motion to dismiss was denied.  But after agreeing with defendant that the prosecution had committed “Medina error” [section (5), above], defendant renewed his motion to dismiss.  Upon considering this evidence, while also taking into account the above-discussed discovery violation (i.e., providing the defense with the additional cellphone records on the day the prosecution’s witness was to testify about them [see section (4), above]), the trial judge granted defendant’s motion to dismiss, ruling that the above errors make it impossible for defendant to ever get a fair trial.  As noted below (see “Conclusion,” below.), the Appellate Court disagree.

Conclusion:  On appeal, aside from arguing that at least some of the alleged discovery and trial errors perpetrated by the investigators and/or the prosecutor either did not occur, or were not as egregious as alleged by defendant, the People submitted that dismissal of the case was not an appropriate remedy.  The Court agreed.  It was noted, however, that total dismissal of a prosecution where there is shown to be “outrageous government conduct” is not unheard of.  (E.g., see People v. Velasco-Palacios (2015) 235 Cal.App.4th 439, where a prosecutor deliberately altered an interrogation transcript to include a confession; and Morrow v. Superior Court (1994) 30 Cal.App.4th 1252, where a prosecutor orchestrated the eavesdropping upon a privileged attorney-client communication in the courtroom, thus acquiring confidential information.) In this case, however, the government’s misconduct was not so egregious that a fair trial is not possible.  Suggesting that upon remand a different prosecutorial agency (i.e., the Attorney General), or maybe just a different prosecutor, might be appropriate, the Court left it up to the trial court to fashion remedies short of dismissal to insure that defendant get a fair trial.  The order of dismissal was therefore reversed, and the case was therefore remanded to the trial court for that purpose.

I apologize in advance for the confusing nature of this brief, not to mention its length.  The decision, as written by the Court, is one of the most confusing, inarticulate, haphazard—employing very little if any rhyme or reason—discussions of the facts and applicable law in a published case decision that I’ve ever seen.  So it took me a long time to boil it all down into something that is hopefully a bit more understandable.  But as poorly organized and written as this case decision is, the investigation and prosecution that led up to it was even worse.  That having been said, I did not see any purposeful misconduct by either the Nevada County Sheriff’s Department or the prosecutor in this case.  Mistakes are inevitable.  What I did see, however, was (1) a sloppy investigation as far as how the evidence was handled, (2) a serious lack of legal research on what could or could not be done in the way of an investigation (e.g., the use of an undercover officer to pry out of an already charged defendant incriminating statements, and the intentional Miranda violations), and (3) very little preparation for the actual trial in the way of legal research, witness preparation, and insuring that all discovery had been provided.  Admittedly, this was not a simple case. But that’s even more reason why it should have been put together in some organized, competent fashion, making sure all the evidence was ready to go, the legal research had been completed, the witnesses were allowed to review their notes and were interviewed in detail, and all discovery obligations had been met.  It does not appear that any of this was done here, or at least done to the degree that the prosecution was not going to be sanctioned.  It’s not surprising, therefore, that the Court suggested that a different prosecutor, or prosecutorial agency, handle the retrial.  With all the evidence that’s already been lost based upon the above rulings, it’s only going to be that much harder to get a conviction.  Justice cannot afford any more mistakes being made.