X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
EAGER PROSECUTOR DINGED ON APPEAL FOR MISCONDUCT Santa Cruz County prosecutor Gordon Isen badly wanted to impeach the testimony of an expert witness for the defense in a DUI and drug possession case. But in an impassioned closing argument, Isen crossed a line, leaving San Jose’s Sixth District Court of Appeal no choice but to declare prosecutorial misconduct and reverse two of three misdemeanor charges against Cesar Gomez. “In this case,” Justice Richard McAdams wrote in a July 18 unpublished ruling, “the prosecutor referred to facts the jury had never heard before, that were made relevant only by the prosecutor’s own cross-examination of the defense expert.” Isen, who’s no longer with the Santa Cruz County district attorney’s office, was trying to impugn the credibility of Halle Weingarten, a forensic toxicologist who specializes in drug and alcohol testing. Weingarten offered defense testimony that officer William Morales of the Watsonville Police Department hadn’t properly tested Gomez for alcohol when he was arrested on Jan. 17, 2003. During a break in the trial, Isen contacted Benny Delrey, a man who had worked with Weingarten at the Santa Clara County crime lab. Isen told jurors later that his conversation with Delrey indicated that Weingarten had been fired from the crime lab and a subsequent position at a private laboratory in Southern California. Weingarten insisted she had resigned the Santa Clara job and been laid off for economic reasons by the second lab. In his ruling, Justice McAdams held that by relying on Delrey’s comments, Isen had deprived Gomez of his Sixth Amendment right to confront and cross-examine an uncalled prosecution witness. “In our view,” McAdams wrote, “the prosecutor committed misconduct when he told the jury about his investigation and his telephone conversation with Delrey. He told the jury that every question he asked Weingarten on cross was based on a ‘cold assertion of fact’ by Delrey and that he had verified his information. His comments were based entirely on matters outside the record and clearly constitute misconduct. “The misconduct was compounded,” McAdams continued, “by the fact that the prosecutor vouched for Delrey’s credibility when he told the jury that he was ‘impressed by’ Delrey.” Justices Nathan Mihara and Wendy Duffy concurred. The ruling reversed the jury’s finding of guilt for misdemeanor counts of driving with a blood-alcohol level greater than .08 and driving without a license. But it affirmed guilt on felony counts of transporting cocaine and possession of cocaine, and one misdemeanor count of driving under the influence of alcohol. Isen’s name was omitted from the court’s ruling, but was verified by appellate counsel. A court’s finding of prosecutorial misconduct automatically requires judges to notify the State Bar. The ruling is People v. Gomez, H028380.

- Mike McKee

This content has been archived. It is available exclusively through our partner LexisNexis®.

To view this content, please continue to Lexis Advance®.

Not a Lexis Advance® Subscriber? Subscribe Now

Why am I seeing this?

LexisNexis® is now the exclusive third party online distributor of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® customers will be able to access and use ALM's content by subscribing to the LexisNexis® services via Lexis Advance®. This includes content from the National Law Journal®, The American Lawyer®, Law Technology News®, The New York Law Journal® and Corporate Counsel®, as well as ALM's other newspapers, directories, legal treatises, published and unpublished court opinions, and other sources of legal information.

ALM's content plays a significant role in your work and research, and now through this alliance LexisNexis® will bring you access to an even more comprehensive collection of legal content.

For questions call 1-877-256-2472 or contact us at customercare@alm.com

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.