Battle over evidence continues in 3-strikes case

VISTA — Evidence, or the lack thereof, in a North County criminal case has created quite a stir between the San Diego District Attorney’s Office and a Superior Court judge.
Prosecutors had demanded Judge Harry Elias remove himself from a three-strikes case in which he must decide if evidence was improperly withheld from the defense; however, at a motions hearing Jan. 27, the judge said he reviewed the law pertaining to a judicial disqualification and that none of the factors, including personal bias or prejudice concerning a party, applied to this case.
In a motion filed in January, Deputy District Attorney Katherine Flaherty called for Elias to step down from the case citing that he has demonstrated a bias against her office in this criminal matter.
The prosecutor pointed to comments Elias made during a hearing in December in which he said the District Attorney’s Office should be concerned about their reputation among judges and attorneys with regard to turning over evidence in light of two recent North County criminal cases in which discovery obligations were violated.
“You’ve got lawyers here who believe there’s a conspiracy concocted,” Elias said at that hearing. “Now that’s sort of their mindset at times, but it’s not good amongst judicial officers.”
The rift revolves around a piece of evidence in the criminal case against Kenneth Bowles, a convicted felon with two strikes who was convicted in December of several more thefts and now faces his third strike. Following his conviction, a brief trial was held to verify the evidence supporting his two strike priors. At that hearing, Bowles’ attorney questioned the prosecution about not properly disclosing information regarding an inconclusive fingerprint result in an evidence report.
At the heart of the matter is a pawnshop slip marked with the findings of the evidence technician, which was properly placed into court’s evidence.
In her motion, Stone said it cannot be the policy of the people to report inconclusive results through the print examiner’s raw notes scribbled on an actual exhibit and then bury them under 20 pages of documents.
Stone has requested either her client’s case be dismissed or his strike priors be inadmissible in this conviction.
Elias — a former prosecutor — now has to rule on whether the prosecution violated their discovery obligations by not publishing the inconclusive result in the fingerprint analysis report, which was also placed into court’s evidence.
The veteran judge said he would take the attorneys’ motions under summary judgment and make a ruling by Feb. 10.
Following the hearing, District Attorney Bonnie Dumanis, who was not in attendance, issued a brief statement saying that her office holds itself to “the highest ethical standard” and takes their obligation to provide evidence to the defense very seriously.


Filed Under: CrimeThe Coast News


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  1. Fred Caldwell says:

    The prosecutor absolutely should have given the fingerprint to the defense to have it examined. The absence of the defendant’s positive ID from an inked fingerprint on a pawn shop ticket could exclude the defendant from selling something stolen. (If I’m reading between the lines of this story properly). I just wonder why the author didn’t disclose that the fingerprint in question came from a pawn shop reciept – as was reported in the Union Tribune. God forbid I take the side of a criminal, but when potentially exculpatory evidence is hidden from the defense, that for sure is criminal activity, geared only toward winning a case. And it’s not that rare in San Diego either.

  2. FredCaldwell says:

    “At the heart of the matter is a pawnshop slip marked with the findings of the evidence technician, which was properly placed into court’s evidence”

    Just FYI. There is no “the” evidence technician when it comes to a forensic expert. Sure, there is the prosecutor’s technician. But the defense’s technician can come the exact opposite conclusion on the same evidence. The two bite mark experts at my sister’s murder trial are a good case and point. The prosecutor’s argument was that because a (poorly defined) bite mark on the victim could not have come from three certain men, it had to have come from Cheri Dale. Whereas the defense’s expert said under oath “almost anybody could have left that kind of a bite bruise”.
    But forget the notion that each case has only one technician. That’s not so, and such a claim gives the false sense of being final and conclusive.
    The sentence should read: “…a pawnshop slip marked with the findings of AN evidence technician”

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