Tuesday, September 16, 2008

Gallegos rests his case - UPDATED

UPDATED:

Former Blue Lake Police Chief David Gundersen has been cleared of all major charges first filed against him in 2008. - Arcata Eye MARCH 2012

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☛ TS Gallegos delivers closing argument
☛ ER Prosecution issues closing arguments in former police chief’s trial
Gallegos said that in all the contacts Gundersen had with Seal after being arrested, he never refuted the charges against him...

I guess that means Gundersen never took the stand - and I am surprised Gallegos would use that as 'evidence.'

(GRIFFIN ERROR (Griffin v. California (1965) 380 U.S. 609 [14 L.Ed.2d 106]). - A prosecutor is not permitted, either expressly or by direct implication, to comment in the presence of the jury on a defendant's exercise of the right against self-incrimination.)

UPDATED:

Former Blue Lake Police Chief David Gundersen has been cleared of all major charges first filed against him in 2008. - Arcata Eye MARCH 2012

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17 comments:

red said...

I took it that PVG was specifically referring to the contacts after the arrest, which would be proper comment on the evidence. Commenting on the defendant's failure to testify is in fact prosecutorial misconduct. I see that he did give the "When she got up and said she was lying, she was lying" argument. That's always fun. What a mess. Well, I didn't hear the evidence, I didn't hear his argument, he may pull this off. But all Clanton needs is one juror (to hang it) and I would not bet against that.

Anonymous said...

There are no "winners" in this case. It's Gallegos vs Gundersen for crying out loud. They should be sharing a cell together somewhere like Rikers.

Anonymous said...

Red: what he said is the Gundersen "has never denied that he raped her."

Fred said...

"Watson explained that if the jury finds Gundersen to be not guilty of spousal rape with the use of an intoxicant, it can vote to
convict Gundersen on lesser charges of either assault or battery."


I suppose that's the way it can work but, seems to me, it should be either all or nothing. If they vote Not Guilty on rape, then they shouldn't be allowed to vote for lesser charges.

But that's just me.

red said...

Well, 10:06, I was going by what the ER reported. If PVG actually did say that then it sounds like Griffen error to me. Did Clanton object?

Anonymous said...

Gallegos has prosecuted this like a defense lawyer-- throw enough mud around and maybe a piece will stick. Don't worry about logic, clarity, law--go for emotion, fear and pop psychology.

And he's lucky, because Clanton is not capable of the ordered, logical, reasoned argument that is a good counter. In fact, a defense closing in this case could
have started with "Here's the closing the DA should have given, but can't" laid out a summary
the "evidence", noted why the DA
has no evidence beyond a reasonable doubt on each element, and then gone on to the usual
defense general emotional appeal.

But when is the last time Clanton
got anyone off?

red said...

yep, 10:58, a true battle of the Titans. But look at it this way - when has Clanton done a trial against PVG?

Anonymous said...

Red: Clanton did not object. But, I don't think that Griffin error can be waived, do you? It would certainly be a valid basis for ineffective assistance of counsel.

Anonymous said...

more on Measure T

http://eurekareporter.com/article/080916-federal-court-denies-request-to-restrain-measure-t

Rose said...

Thanks, 1:50, I'll take a look at that.

Meantime - GRIFFIN ERROR (Griffin v. California (1965) 380 U.S. 609 [14 L.Ed.2d 106]).
A prosecutor is not permitted, either expressly or by direct implication, to comment in the presence of the jury on a defendant's exercise of the right against self-incrimination.

red said...

The authority I've seen is that without an objection Griffin error is waived - People v. Medina (1995) 11 Cal.4th 694, 756 (fortunately I've never screwed up in that particular way so it's all academic) but 1:44 is right, that's probably a good basis for an IAC claim on appeal. If it gets that far.

Anonymous said...

Actually, Gallegos argued that his failure to ever deny the claims was an adoptive admission of the truth of the claims.

Interesting?

Anonymous said...

If Gallegos gets away with the
adoptive admissions bit, the
5th Amendment disappears.
On the other hand, if a defense argues consent, in a case where the defendant doesn't testify, the
DA can argue "the only evidence is that she did not". Assuming she takes the stand and says that. It's just weird to have a rape case get all the way to a jury with a victim who says "didn't happen and I do not want to be here, they lied to me, held me against my will, and generally abused me. Then, they gave me immunity to tell the story they
wanted."

Anonymous said...

Weird? Thats the understatement of the year.

Anonymous said...

Hey AJ or Red...didn't Gallegos get slammed on a GRIFFIN violation when he was a defense atty? I believe WD was the prosecutor but I forget the case...

-CA

Anonymous said...

Not Griffin, Wheeler. That's the
racial discrimination one PVG got nipped on by WD.

Anonymous said...

A failure to object is not forfeited if the misconduct could not have been cured by an admonition to a jury.