Lazy Squared

Humboldt County, California, Public defender Gregory Elvine-Kreis moved to dismiss the burglary indictment based upon the failure of then Deputy District Attorney Allan Dollison to turn over an interview of the defendant prior to trial.  Judge Marilyn Miles refused. 

Via the Times-Standard :



In opposing the motion to dismiss, [Deputy District Attorney Zachary] Curtis said Dollison had no reason not to disclose that he knew about the police interview.


”It just boggles the mind to think that the prosecutor would deliberately hide this information,” he said. “It just escaped Mr. Dollison entirely.”

Curtis said it amounted to “facts lost to an extremely busy prosecutor in an overloaded office.”

Elvine-Kreis said understaffing wasn’t a justification for the violation of a defendant’s rights.

”Part of the reason this happens is they are overwhelmed,” he said. “If they are overwhelmed, they need to hire.”


So the prosecutor was too busy to remember to turn over statements at trial?  Pretty outrageous, both because it’s a facile excuse and, as Elvine-Kreis argues, it’s not an excuse at all. Too busy is their problem, not the defendants. They are required to turn it over, and there is no exception to that requirement that it only applies if they remember or have the time.

Dismissal of an indictment is an extreme remedy, and the prosecution argued that there were other, lesser, remedies available to address the failure. Indeed, that’s true, such as preclusion of admission of the confession at trial.  While nothing has the impact of dismissal, the punishment of the prosecution also punishes the community for a prosecutor’s screw-up by putting a bad guy back on the street.  While many of us would argue, and believe, that the trade-off is well worth it, judges don’t always see the severity of prosecutorial failure and deprivation of constitutional rights as clearly as we do.

But what happened here isn’t exactly as clear cut as the defense’s motion suggests.  Defense counsel learned about the failure to disclose during opening statements at trial. Not a great time to learn that the defendant confessed.  This is the description of how it came down:


A mistrial was declared in the case on Dec. 13, following opening statements. Judge Marilyn Miles, who was overseeing the trial, granted the defense request when it came out that a police interview had taken place with the defendant outside of the scope agreed upon by her defense attorney at the time, and that the information she gave about her pending case was not turned over to the defense until the trial had started.

Wait a second. Did you catch this detail:


…a police interview had taken place with the defendant outside of the scope agreed upon by her defense attorney at the time…

While I’m having a bit of trouble wrapping my head around the significance of this statement, it suggests that the police wanted to “interview” the defendant, who was represented by counsel, without the lawyer present.  And this was good with the lawyer. And the lawyer and the police had some sort of agreement as to the “scope” of the interview, which the police somehow exceeded in the absence of the lawyer. And the lawyer knew that the police were interviewing the defendant but never learned what happened, what was said. 

And this is okay?

Like Elvine-Kreis, I too see the failure to disclose a statement because the prosecutor was too busy and forgot as utterly inexcusable, and worthy of severe sanction.  But then, I see the defense lawyer allowing a represented defendant to be interrogated by cops without being present as worse.

We expect the police to take advantage of defendants given the chance. That’s their job. They aren’t there to be kind and compassionate to criminals, but to catch them and make them confess their crimes. And the defense lawyer thought that some agreement as to scope of the interrogation would protect the defendant? That’s nuts. That’s incompetence.

Was the lawyer too busy to make it to the interrogation?  Sure, there are plenty of pressures, places to be, things to do. That’s the argument the prosecutor made in forgetting to turn over the statements. If that’s why the defense lawyer failed to be present (and why did the lawyer agree to let the defendant be interviewed by the cops at all?), it doesn’t get more ironic.

Some will follow their bias and forgive the defense lawyer while holding the prosecutor accountable. Indeed, one was just mind-bogglingly incompetent, while the other had a duty to fulfill.  But the defense lawyer had a responsibility as well, to provide zealous representation to the defendant.  Can’t make it to the interrogation? Then set it for a time you can make it. There is no time you can make it because you are so very busy? Then don’t let it happen.

In football, there are off-setting penalties, resulting in the terribly dissatisfying result of a do-over.  And there will be a do-over here, if the case is retried after the mistrial.  This sends a bad message to the prosecution that it’s acceptable to be too busy to fulfill their constitutional duties, and the worst that will happen is that they will be made to do what they should have done in the first place, and then get a second chance. Bad message.

But it’s really hard to work up a head of steam over the prosecution’s failure when the defense attorney failed as well.  The real shame here, which apparently eluded everyone, is that while the lawyers for both sides screwed up, the defendant will be the one to suffer on both accounts.

H/T FritzMuffKnuckle

8 comments on “Lazy Squared

  1. Uppercase Matt

    “her defense attorney at the time” implies that whatever happened wasn’t Elvine-Kreis’s fault, and maybe he never even knew of the interview. Sounds like he’s just trying to clean up the mess.

  2. SHG

    I would expect it to be either someone else from his office or another indigent defender, though not Elvine-Kreis.  The article doesn’t say. But even though he may be cleaning up the mess, the mess doesn’t disappear.

  3. SHG

    That’s how it always seems to work. At least the public defender was back on his game in trying to salvage the mess. Too bad there was the initial screwup to overcome.

  4. MCB

    I just cannot imagine why any defense attorney would ever let their client talk to police or a prosecutor without their presence. If counsel is too to attend an interview, then don’t have an interview. If police have questions they want answered they can send the questions to counsel, and counsel can work with the client when there is time to answer them. I really can’t imagine what would be behind making that decision.

  5. nm

    I don’t know, but it is pretty common in California for clients to hire private defense attorneys for the prelim and then get dumped on the PD for trial (because they cannot pay the private defense attorney for jury trial).
    The private attorneys who do this are pretty notorious for messing up cases.
    Not saying this is or isn’t the case and obviously someone made a major mistake.

    edit: Just noticed the defendant was represented by the conflict panel. Could have been a DPD who then conflicted, which would be disappointing.

  6. SHG

    Disappointing (and inexcusable) no matter who did it. Not pointing fingers, as much as making the point that this should never happen, no matter who is defending.

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