JUDGES MICHAEL PASTOR AND GEORGE LOMELI AND DR. HSIU-YING "LISA" TSENG : ANOTHER CASE OF DENIED DUE PROCESS AND RACIAL DISCRIMINATION BY THE CALIFORNIA COURT SYSTEMS; DUE PROCESS DEMANDS THAT DR. TSENG GET A NEW JUDGE FOR TRIAL

Los Angeles, California


February 9, 2016
(Today's date)

May 17, 2013
(Original date)

**UPDATE (Denotes "NEW" information added to the blog after publishing original blog)

*(Denotes new information or material added to the original blog)

*This blog is submitted and contributed as part of the "War on Racial Discrimination" (WRD) in California; and it is dedicated to Christopher Dorner, as the first leader of the WRD.


Dr. Hsiu-Ying "Lisa" Tseng has been charged with second degree murder and multiple other charges (24 Counts in total) for purportedly recklessly prescribing painkillers and/or other medication to multiple patients during the course of her medical practice over the years, causing the death of several of those patients. In particular, Dr. Tseng is charged with second degree murder for the deaths of at least three former patients. Dr. Tseng "was arrested March 1, 2012", L.A. Times, "Request to lower doctor's bail is denied", March 11, 2013, and "has been in jail for a year awaiting trial on charges that she recklessly prescribed powerful painkillers to young patients seeking to abuse drugs". Id. As of at least August 7, 2012, Tseng's bail has been set at $3,000,000.00, and I gather from speaking with one of Tseng's counsel that the initial bail amount was determined and set by and according to the bail "schedule" (e.g., 2012 Felony Bail Schedule, Superior Court of California)(hereinafter "FBS"). According to the FBS, the "presumptive bail" for each murder offense is $1,000,000.00, and since the government is charging Dr. Tseng with three murders, her bail has been set at $3,000,000.00. Through her lawyers, Dr. Tseng apparently asked that the bail amount be reduced to at least $750,000.00. As of March 8, 2013, where a lower bail request was specifically denied by judge George G. Lomeli, and now May 3, 2013, where there was a postponement of the bail decision pending submission of some documents, the bail still had not been lowered.

The bail amount should have been lowered, and it was a denial of due process not to do so. Furthermore, because the failure to reduce the bail was in large part based on the fact that Tseng is Chinese or Asian, it also denied Dr. Tseng equal protection of the law or was a result of racial discrimination.

THE DENIAL OF DUE PROCESS

The Fourteenth Amendment to the United States Constitution states in part, "No State shall. . . deprive any person of life, liberty, or property, without due process of law." That means in particular, "No American citizen shall 'be deprived of life, liberty or property without due process of law'", L.A. Times, "Targeting Americans : Drones and Due Process; What's the law? It can't be what the Justice Department's 'white paper' said it was", February 17, 2013. And, as stated by the American Civil Liberties Union, as it relates to the the pre-trial refusal to reduce bail for Dr. Tseng, the "Denial of rights is un-American and will only make it harder to obtain fair convictions", L.A. Times, "Legal debate swirls around treatment of suspect", April 21, 2013. Clearly, the right at issue here for Dr. Tseng is the "liberty" right. She is being deprived of liberty without due process of law.

Dr. Tseng has been deprived of due process in several ways, but the most important is being punished for the charged offenses prior to trial and conviction. As mentioned above, Dr. Tseng has now been incarcerated for over a year, without a trial or conviction. "The practice of admission to bail, as it has evolved in Anglo-American law, is not a device for keeping persons in jail upon mere accusation until it is found convenient to give them a trial. On the contrary, the spirit of the procedure is to enable them to stay out of jail until a trial has found them guilty. Without this conditional privilege, even those wrongly accused are punished by a period of imprisonment while awaiting trial, and are handicapped in consulting counsel, searching for evidence and witnesses, and preparing a defense." Stack v. Boyle, 342 U.S. 1 (1951).

Next, she is being deprived of due process by the Superior Court of California, through judges Pastor and Lomeli, refusing to reduce or lower her bail. Although it appears, from my conversation with one of Tseng's counsels, that Dr. Tseng has managed to acquire sufficient funds or property to reach the bail amount required or necessary for her release, that fact does not detract from the damage done by the excessive bail required in the first place and the damage done by the sacrifices necessary to meet the current bail amount, $3,000,000.00 . To begin with, although the FBS sets a benchmark amount for bail for certain offenses, it does not prevent that benchmark amount from being reduced where circumstances necessitates such. "At and after a defendant's first appearance, pursuant to Penal Code section 1269(b), the amount of bail, if any is allowed, shall lie with the sound discretion of the judicial officer before whom the defendant appeared, and may be greater or less than the amount set forth in this schedule. . . ." 2012 Felony Bail Schedule, Superior Court of California, County of Los Angeles. That means both judges Pastor and Lomeli had the authority and discretion to reduce the bail amount initially set by the FBS. But, they both refused to do so. This refusal denied Tseng due process, because neither judge had adequate reason to refuse to reduce the bail.

First of all, judge Pastor should not have been assigned to Tseng's case in the first place. As readers of my blogs know, I published a blog, in fact several related blogs, charging Pastor with denying Dr. Conrad Murray due process of law and with racially discriminating against Dr. Murray (who is black). Furthermore, I filed a federal criminal complaint against Pastor and the Medical Board of California for violating Dr. Murray's rights in an attempt to cripple his ability to defend himself by unlawfully suspending his medical license (and, simultaneously, his medical practice). Although the U.S. Attorney's Office refused to prosecute Pastor, that refusal did not detract from the acts of misconduct Pastor had demonstrated during Murray's pre-trial and trial proceedings. And, those acts alone were enough for the Superior Court of California to have assigned another judge besides Pastor to preside over Tseng's case, that is, because of the nature of the case (i.e., a minority medical doctor being charged with misconduct which caused harm to a patient). But, the Superior Court, not surprisingly, chose to assign Pastor, and the refusal to reduce the bail must be viewed with that in mind.

When the bail question reached Pastor through the pre-trial conference and trial setting hearing on October 11, 2012, the bail amount was, and remains, $3,000.000.00. The record doesn't indicate whether the issue of a bail reduction was raised at all. Perhaps Pastor indicated to the parties that he would not be reducing the bail, therefore Tseng's counsel thought that there was no need to make a request,i.e., that it would be futile. I don't know. So, I can't attribute the refusal to reduce the bail to Pastor at this point, unless Pastor stated that there would be no bail reduction. Counsel should have made a request for a bail reduction at this time, even if it was just to preserve a proper record. Again, I admit, I do not know what took place.

On November 1, 2012, again there was a pre-trial conference and trial setting hearing before judge Pastor. Again, nothing indicated about bail or bail reduction. Again, I can't, and don't blame Pastor, unless Pastor had in fact stated to the parties that he would not be reducing or lowering the bail. Then, I would blame him, because that would be a blatant violation of Tseng's due process rights. But, even if Pastor had indicated that he would not be reducing the bail, Tseng's counsel should have made the request anyway and made a record.

On November 7, 2012, there was an exchange of counsel for Tseng and the supervising judge, Patricia Schnegg, through a previously written order (10/31/2012) ordered a re-assignment of judges over Dr. Tseng's trial proceedings, replacing judge Pastor with judge Lomeli. This was a positive move by judge Schnegg. I still surmise that something happened with judge Pastor here during Tseng's pretrial proceedings that also contributed to judge Schnegg ordering a new judge be assigned for Tseng's trial proceedings, and together with my past blogs regarding judge Pastor and the reasoning behind them, judge Schnegg decided in the interest of fairness and due process, another judge should be assigned. Kudos to judge Schnegg. This was a fair decision and due process for Dr. Tseng.

So, regardless of what due process or other violations judge Pastor may or may not have committed during his brief tenure during pretrial proceedings, as of November 7, 2012, Tseng began anew with a different judge, Lomeli, who had the ability and authority to try and correct any past due process or other constitutional violations committed by judge Pastor, if any were committed (and at this point, I do not know that any has been committed), and to start anew with a demonstration of an effort to afford Tseng due process as she proceeds to trial. However, this didn't happen. Lomeli refused to reduce the $3,000,000.00 bail requirement (and that was a due process violation in and of itself--even if Tseng manages to make the bail) , and I contend that the refusal was based in part on the fact that Tseng is Chinese or Asian. In fact, I contend that the entire prosecution of Tseng, including and in particular the charge of murder and the established bail amount, was brought because Tseng is Chinese or Asian. I will address this issue heretofore and henceforth in this blog when I discuss the issue of racial discrimination against Tseng.

May 14, 2013--Alas! I have discovered through one of Dr. Tseng's attorneys that in fact an oral motion or request for a reduction of bail was made before Pastor and Pastor denied the motion or request. However, the record does not indicate such. Therefore, whatever clerk was responsible for compiling or developing the record or docket when Pastor presided omitted the information from the docket, and because of the circumstances, it appears intentional. Ordinarily, it is probably Pastor's courtroom clerk that is responsible for developing the docket. In any event, the omission was a denial of Dr. Tseng's constitutional right to a public trial and public record, not to mention fraud by omission. If an oral motion or request for a reduction of bail was made, and denied, it should have been noted on the docket. But, it wasn't. For what should have been done, see the docket at 1/10/13 where judge Lomeli presided, where "DEFENSE ORALLY NOTICES COURT OF MOTION FOR BAIL REVIEW HEARING, WRITTEN MOTION TO FOLLOW" . And if the omission was made at the behest of Pastor, then it was a conspiracy to omit the information and to deny Tseng her constitutional rights, *and a conspiracy to commit fraud. At this point, I do not know if Pastor ordered the omission, so, in fairness, I am only pointing to the clerk and holding him or her responsible.

So, we now know that Pastor, initially, denied Dr. Tseng a reduction of bail, without inviting Tseng to submit a written and more detailed motion. And that was a blatant denial of Tseng's due process rights, because it was arbitrary and capricious, and caused Tseng to continue to be incarcerated and punished without a trial. And now we know what at least was likely part of the reason judge Schnegg assigned a new judge for Dr. Tseng's case.

Next, we get to judge Lomeli's denial of a reduction of bail to Tseng. His denial was a violation of Dr. Tseng's due process rights as well, even if Tseng manages to come up with the necessary bail amount for release.

As alluded to earlier, the bail amount of $3,000,000 was set according to the FBS for the offense of murder ($1,000,000), and the fact that Tseng is charged with committing three murders. But the FBS is simply a benchmark that can be adjusted either way, up or down, and the Superior Court judges know, or should know, this. Therefore, judges Pastor and Lomeli knew or should have known this. And, because Tseng is being charged with an "indirect" rather than a "direct" murder, Pastor, when Tseng's case first reached his court, should have invited Tseng to move for a reduction of bail based on this fact alone. But, he didn't. However, he did not abuse his discretion in not doing so, nor did he violate Tseng's due process rights in not doing so, but he should have done so to fully protect Tseng's due process rights, especially her right not to be punished before a trial.

Tseng is being charged with "indirectly" murdering three individuals, rather than directly murdering them because she is not being charged with prescribing medication, and thereafter somehow intentionally causing the medication to be taken in an overdose by the murdered person (either by forceably pushing the pills down the throat of the victims or by paying another person to do so)(which would be a direct murder). She is simply being charged with overprescribing medication, recklessly, which eventually,after being consumed by the individual in an overdose quantity, caused the deaths of at least three persons. However, the bail amount set for Tseng's release is for an intentional and direct murder. And that's the starting point of the due process violation.

Tseng's bail amount was excessive from the outset, because it was based on a "direct" murder, which is not applicable to Tseng's case. By way of explanation, I believe that an example would be most demonstrative. Earlier this year, in the State of Texas, three people, an assistant district attorney, and a district attorney and his wife, were murdered by gunfire. This was a "direct" murder, at the hands(and gun) of another. This murder was violent(by gunfire) , gruesome (multiple shots in each person killed), and premeditated (the murders were planned). After a suspect was arrested and charged with the murders, the State of Texas (which usually executes more people than any other state) set the bail at $3,000,000, generally $1,000,000 per victim (probably according to an FBS in Texas). Now, compare this to Dr. Tseng's "indirect" murder case. Dr. Tseng's alleged "murders" were neither violent, nor gruesome, nor premeditated, yet, she is assessed the same bail amount as the Texas suspect. On the face of it, is that fair? Is that due process for Tseng? Absolutely not. The arraignment judge can be excused from any due process violation, because at that point, the bail was determined strictly according to the FBS. But, when the case moved from arraignment to pretrail conference/trial setting, bail was no longer determined by the FBS, rather, it was determined by fairness and due process. Judges Pastor and Lomeli were charged with determining the amount of bail required based on the purpose of bail and due process. Because of the nature of Tseng's "murders", her bail should have been reduced by Pastor and Lomeli automatically, and both of them should have invited Tseng to reduce her bail when her case reached them.

Instead, Pastor arbitrarily denied Tseng's bail reduction motion or request without a *bail reduction hearing, which was a blatant denial of due process; and Lomeli denied the motion (with a hearing) based on, among other things, the seriousness of the charges against Tseng, i.e., three deaths. But, all murders are serious, yet, that doesn't make them all alike. Moreover, the purpose of bail is to assure or secure the appearance of Tseng at trial or throughout trial proceedings, and the $3,000,000 bail amount (which is excessive) would not secure Tseng's presence anymore than the $750,000 amount proposed by Tseng. Consequently, Lomeli denied Dr. Tseng her due process rights as well.

Finally, in addition to judge Lomeli denying Tseng her due process rights by refusing to reduce her bail, he also acted arbitrarily and prejudicial to Tseng in his bail reduction rulings. On March 8, 2013, when Tseng, through her counsel, attempted to have the bail reduction hearing continued to provide more evidence, Lomeli, without knowing what information would be provided or the significance of that information, provided the following, "THE COURT INFORMS COUNSEL THAT THERE WILL BE NO NEED TO CONTINUE HEARING ON THE DEFENDANT'S MOTION FOR BAIL REDUCTION AS HE IS PREPARED TO RULE AND CANNOT SEE ANY POSSIBLE FORTHCOMING INFORMATION THAT COULD CHANGE HIS RULING." "THE MOTION FOR REDUCTION OF BAIL IS DENIED BY THE COURT". Yet, on the other hand, "THE COURT GRANTS THE REQUEST TO CONTINUE HEARING ON DEFENDANT'S MOTION PURSUANT TO PENAL CODE SECTION 995 TO MAY 3RD". So why couldn't the Court continue the bail reduction matter, which is considerably more significant to Dr. Tseng than the 995 motion at this time, the same time that he continued the 995 matter? There is no reasonable explanation. Only a prejudicial one.


RACIAL DISCRIMINATION AGAINST DR. TSENG

It seems clear to me that the government brought this murder prosecution against and maintained the bail amount for Dr. Tseng because she is Chinese or Asian. It is doubtful if she was white that she would be prosecuted for murder, rather than excessively prescribing controlled substances, and the bail set at $3,000,000.00, but, I'm not relying on *the notion that she is Chinese alone for my contention that she is being targeted because she is Asian.

First, the L.A. Times has relentlessly investigated and published articles regarding the rising number of deaths associated with or connected to the use of prescription drugs in the U.S. and California. See, e.g., "Deaths tied to painkillers rising in U.S.", L.A. Times, March 30, 2013. And, conjunctively, the Times has also set out to scrutinize certain medical doctors prescribing painkillers and other drugs, especially those it believes has had some history of prescribing medications to patients who have ultimately overdosed on the drugs, sometimes causing death. The Times' investigations have in turn lead to other legislative and activist actions directed at corralling doctors who abuse prescription drugs through their writing what may be concluded are "unnecessary" and life-threatening prescriptions. See, e.g., "Legislators seek medical board reform", L.A. Times, April 26, 2013, where "The Medical Board of California would be stripped of its power to investigate physician misconduct under a sweeping reform plan by legislators who say the agency has struggled to hold problem doctors accountable"; and "The medical board has come under fire for failing to discipline doctors accused of harming patients, particularly those suspected of recklessly prescribing drugs." Finally, "Fearing lawmakers may fail to pass a package of medical reform bills, a coalition of consumer groups and trial lawyers is mounting a campaign to put before voters an even more ambitious slate of initiatives aimed at curbing prescription drug abuse and holding doctors more accountable for misconduct." L.A. Times, "Measure would go after bad doctors", May 2, 2013.

Second, in relation to the Times investigation of "bad" doctors, "(A)series of articles in the Times last year showed that nearly half of the prescription drug deaths in Southern California in recent years involved prescriptions written by doctors to the decedents." Id. "The Times found 71 doctors who had three or more patients fatally overdose, and several had a dozen or more die. In some cases, patients fatally overdosed while the Medical Board of California was investigating their doctors for reckless precribing." And, the Times quoted one activist citizen as stating, "The problem is, when someone dies from a prescription drug overdose in California, there is no recourse at all." Id.

Consequently, the Times set out to expose some of the doctors whom it had found to be "bad" in some way, either because of being investigated by the Medical Board of California, or being criminally charged by the State of California, or, in some other way being incriminated. The problem is: it appears that the color concentration of the cited doctors came up "yellow". On April 5, 2013, in an article entitled, "Doctor to get prison in illegal prescriptions", the Times identified one Alvin Ming-Czech Yee, who is presumed Asian, as "An Orange County doctor who often saw patients at Starbucks coffeehouses" and who "has agreed to serve at least eight years in federal prison for illegally selling prescriptions for powerful painkillers and other drugs." And, about a week later, April 11, 2013, in an article entitled, "Doctor loses another patient to overdose", the Times reported, "Dr. Van Vu of Orange County had been the subject of a Times investigative report", and "The Medical Board of California launched an investigation into Vu's practice following the Times report published in November. The inquiry into patient deaths is ongoing." Dr. Vu is Asian (the Times produced a picture of him, and he appears Asian). Are there no white doctors overprescribing drugs? Are all of the 71 doctors identified above (who had three or more patients fatally overdose) Asian? Even if they are, that fact would only contribute to possible discrimination against Dr. Tseng.

Third, recently (within the last four to six months) there has been much controversy surrounding the so-called "maternity hotels", that is, where "Asians give birth to U.S. citizen babies at the facilities", L.A. Times, "16 'Maternity hotel' owners cited", April 12, 2013. Once the white community found out about the going-ons surrounding the Asian women giving birth to American babies, there were clearly objections, animosity, and resentment expressed. And that resentment was relayed to L.A. County officials in the form of complaints; and "Following a flurry of complaints, Los Angeles County inspectors have cited 16 'maternity hotel' owners for illegally operating boarding-houses in residential zones." And where were these maternity hotels located? "The facilities, all in Rowland Heights or Hacienda Heights. . . . " Id. `And where do you think Dr. Tseng practices? Ans: Rowland Heights. And do you think there is a connection? Absolutely. It was surmised that as a result of the citations for "illegally operating boarding-houses in residential zones" that "The facilities. . .will ultimately be shutdown (according to officials)". id.

It would defy common sense to believe that no information at all regarding the L.A. Times' investigations of "bad" medical doctors, or its coverage of the identified Asian medical doctors, or its coverage of the "maternity hotels", has reached the D.A.'s office or the Superior Court of California and/or judges Pastor and Lomeli. But, even assuming that it didn't, there is still sufficient independent evidence or reasons that would point to discrimination against Dr. Tseng based on the fact that she's Asian. See below for two.

Fourth, "Tseng's case is the first time the Los Angeles County district attorney's office has sought murder charges in connection with a physician's drug-prescription practices." L.A. Times, "Request to lower doctor's bail is denied", March 11, 2013. *(Incidentally, the L.A. Times, in this article, failed to inform readers that judge Pastor had presided over the case before Lomeli and had denied a bail reduction request before Lomeli was assigned to the case--therefore, readers are lead to believe that Lomeli's denial of a bail reduction was the first time that Tseng had been denied a Bail reduction, which wasn't true). So, why did the D.A. decide to pursue murder charges in Tseng's case and not another case? Could it be because Tseng is Asian? In the case of Anna Nicole Smith, who died in 2007 from an overdose of prescribed medication, when her white psychiatrist was arrested and charged in connection with Smith's death, she (the psychiatrist) was not charged with murder, rather, she was just charged with "excessively prescribing drugs" to Smith prior to Smith's death. Even though she, "The psychiatrist, who had treated Smith since 2006, traveled several times over six months to the Bahamas, where the former Playboy playmate was living. . ., and wrote the precriptions". Associated Press, March 16, 2009. "Attorney General Jerry Brown said Friday that the doctors wrote precriptions in fictitious names and prescribed unwarranted amounts of highly addictive medications to Smith, knowing that she was an addict." Could it be that the D.A.'s Office chose not to seek murder charges against Dr. Khristine Eroshevich because she was white? Probably.

Fifth, Dr. Conrad Murray, who is a Black medical doctor, was charged with (and subsequently convicted of) involuntary manslaughter, which is a lesser included offense of murder, for the "direct" killing of superstar Michael Jackson. In Dr. Murray's case, there was evidence that Dr. Murray, himself, physically injected Michael with the drug Propofol, causing Michael's death. Yet, Dr. Murray's bail was only $75,000.00. So, how do you get from a $75,000 bail for a charged "direct" killing to a $3,000,000 bail for charged "indirect" killings? It's simple. You get there by focusing on Dr. Tseng's race as Chinese or Asian. And THAT is racial discrimination.

DUE PROCESS REQUIRES THAT DR. TSENG BE ASSIGNED A NEW JUDGE FOR TRIAL

Although it will be a burden for Judge Patrica Schnegg to assign another judge to Dr. Tseng's case, after she in fairness and good faith has already replaced one judge, I believe that in order to try and fully protect Dr. Tseng's constitutional rights to due process of law and equal protection of the law, judge Schnegg must assign another judge to preside over Tseng's trial. Otherwise, if judge Lomeli, like judge Pastor, is allowed to preside over her trial, she stands to suffer irreparable harm.

UPDATE--May 20, 2013

There were some changes made in the blog, as noted with the *, since the original publishing.

UPDATE--June 1, 2013

There was another hearing held on Friday, where Tseng's counsel attempted to get the bail hold lifted. It didn't happen. Judge Lomeli stated that the government had filed another opposition to the hold, or some documents, and that he would have to review the documents before he could rule on lifting the hold. So, again, while Dr. Tseng sits in jail, another hearing has been postponed (this time until Wednesday, the 5th), enlarging the time that Tseng remains incarcerated and away from her family. Moreover, Tseng shouldn't have to be going through this nonsense about a hold on the bail anyway, because the bail should have been reduced, and she probably had enough clear funds or property to pay for a reduced bail. This is nothing but government-sponsored delay and denied due process that is being sanctioned by the Court. Even if the government documents have some merit, it doesn't prevent the judge from lifting the hold before considering the documents if he believes Tseng is being denied due process on the record before him, and subsequently, if the documents are so significant that they would require altering the bail decision, to recall the bail decision. In that way, he would be putting due process ahead of procedural process.

Next up is the Wednesday hearing.

UPDATE--June 5, 2013

I attended the scheduled hearing held today. Outrageous! The bail decision has been postponed again. This time to July 10, 2013. Meanwhile, Dr. Tseng continues to be incarecerated. This time the reason for the delay is that the judge has not had an opportunity to go over papers filed by Dr. Tseng, which were filed in his court yesterday. Moreover, Lomeli offered another reason as being that he was not satisfied that all the bail assets offered could be traced to a non-felonious source (which in part was based on the government's presentation in their papers and in court). The government's lead counsel, who happens to be Asian herself (coincidence or plan? Only the government knows for sure), appears to be a thorough and effective prosecutor. And, that's her job. So, she is putting up a good argument regarding possible commingling of the funds relied upon for bail. But, her argument, however convincing, could not compete against a due process argument. Nevertheless, the due process argument is not being made. Rather, Tseng's counsel is resting and relying on state law, i.e., lifting the hold on the bail.

What's outrageous is that Dr. Tseng continues to be incarcerated, which means that she continues to be punished without a trial or conviction, and the time she has been incarcerated is now approaching 1 and a 1/2 years. That's absolutely outrageous and it calls for extraordinary measures. And one of those extraordinary measures is to resort to the California Constitution and due process and equal protection of the law. Apparently, state law is not working. But, perhaps by July 10th it will work. It appears that Tseng's counsel is getting closer to convincing Lomeli of a separation or isolation of the bail funds. But, it appears that she will need the cooperation of the government in order to succeed. However, even if she succeeds, Tseng would have served two months more time since I first began attending or focusing on these hearings, May 3rd, 2013. And that time can't be replaced.

First of all, Dr. Tseng has been denied due process since she was first denied a reduction of bail by judge Pastor. And this denied due process was exascerbated by the fact that if her bail had been reduced, as it should have been, she would not even have been faced with or litigating the issue of felonious proceeds contributing to her bail. This is so because my understanding, from speaking with one of Tseng's counsels, is that Tseng's mother would have had sufficient separate and independent funds to support or provide for bail such that Tseng's questionable assets would not have been relevant or necessary. In other words, if the Court would have reduced the bail, as due process requires, there would be no commingling issue, the mother would have provided the bail from her separate funds, and Dr. Tseng would be free (on bail). By the way, I question the whole notion of the government charging Tseng with offenses that place or put her income from her practice in jeopardy. I think the charges were set forth for the purpose, even if not the only purpose, of making it difficult for Tseng to make bail.

Second, because the continuous incarceration of Dr. Tseng is extraordinary, Tseng's counsel should be prepared to take extraordinary measures on July 10, 2013 if the hold is not lifted on the bail.


UPDATE--June 12, 2013

What I didn't mention above, and what further supports the fact that the continuous delay of a bail decision for Dr. Tseng is outrageous is that judge Lomeli had already scheduled a June 14, 2013 hearing on Tseng's motion to dismiss certain counts (995 motion) prior to the July 10, 2013 date. This means that the bail decision could have been heard at that time. But, after Tseng's counsel pointed that out, Lomeli indicated that he couldn't hear the 995 motion on that date because he had reviewed Tseng's filings and discovered that they were voluminous, and that he wouldn't be able to properly examine them by the June 14, 2013 date. But, this date had already been set when the motion had already been filed, so he must have known how voluminous the filings were when he set the June 14, 2013 date. But, I still don't recall why he could not have heard the bail decision on that already scheduled date. But, whatever the reason was, it wasn't an adequate one, and the entire delay is nothing more than a continuous violation of Tseng's due process rights without sufficient justification. Lomeli cancels an already scheduled and calendared date for the 995 motion hearing, then refuses to schedule the bail hearing on that same already scheduled date, and postpones the bail hearing until July 10, 2013 (while suggesting that defense and the government informally confer during the time period leading up to July 10, 2013--while continually accepting the government's position in denying Tseng bail, which suggests that the informal conference between the defense and prosecution will be nothing more than Tseng trying to convince the government "informally" that she has satisfied the bail requirements), which is approximately another month away; which means that Tseng remains incarcerated for another, and unjustified and unnecessary, month. At this point, each day that Tseng remains incarcerated is a violation of her due process and equal protection rights, and each day she suffers irreparable harm.

Again, as of July 10, 2013, any further harm Dr. Tseng continues to suffer will fall squarely on her counsels' shoulders. It is clear that Lomeli has no regard for Dr. Tseng's constitutional rights, so Tseng's counsel must take steps to get some regard.

Finally, since originally posting this blog, I have discovered other information, or evidence if you will, which corroborates my contention that Dr. Tseng is being discriminated against because she is Asian. On or about May 13, 2013, CBS News reported that a racist video related to Asian Americans was produced by the City of Los Angeles "with taxpayer money". It was a part of the City Works program, and it was played on Ch. 35, a City Works channel. According to the broadcast, it was also played on YouTube. There were several individuals interviewed for their reactions or responses to the video, and the individuals provided such comments as the video "played to racist stereotypes" and was "demeaning"; it was "a racist video", and it "reinforced very demeaning racial stereotypes of Japanese Americans"; and finally, by Warren Furutani, Public Works Commissioner, "this is racist" and "this is a problem".

If city employees can exercise racist attitudes and behavior against Asian Americans or Asians, then why can't County and State employees, including judges, do the same? It's the same type of racism, only it's demonstrated in a different and purportedly legal way.

UPDATE--July 16, 2013

On July 10th, 2013, a scheduled bail hearing was held once again. Once again, the outcome was "outrageous". That is, Dr. Tseng continues to be incarcerated and yet another future date, August 21, has been established to determine the status of Tseng's bail request or lifting of the "bail hold". Tseng has likely served the sentences for some of the charges against her, without ever going to trial and being tried. "Outrageous"!

Apparently, the so-called informal process that was supposed to take place between Tseng, through counsel, and the government did not resolve anything. According to one of Tseng's counsels, Tseng and the government is still awaiting information from a bank or banks, so that was the extent of any informal negotiation, i.e., the government continues to demand bank information (in terms of commingling of funds) and Tseng continues to await that information; meanwhile, Tseng continues to be incarcerated during this waiting period.

As I indicated above, in an earlier version of this blog, Tseng's freedom is now squarely in the hands of Tseng's lawyers, and it is those lawyers who must now take immediate and appropriate action in order to gain Tseng's freedom while she awaits trial. There is no longer a shared burden among the parties, i.e., Tseng, the government, and the judge. Both the government and the judge have demonstrated that they are not willing to respect Tseng's constitutional rights to both due process and equal protection of the law. So Tseng's lawyers must take their own steps or action to protect Tseng's rights. But, thusfar, they aren't doing anything.

As I stated earlier, the time has come (after the July 10, 2013 hearing with no resolution of the bail controversy resulting in Tseng's freedom) for Tseng's lawyers to initiate and exercise "extraordinary" measures in order to try and secure Tseng's freedom from incarceration while she awaits trial. However, it appears that her counsel are not taking any measures, outside of waiting on the bank for a decision of separation of funds. This is unacceptable.

I have met several of Tseng's counsel, and the three that I have met appear to be nice people. But, nice people do not necessarily equate to good lawyers. And, right now, Tseng's counsel are not acting as good lawyers. Good lawyers do whatever is necessary within the framework of the law to obtain the necessary or proper relief for their clients, even if it means reaching out to others for help. Right now, Tseng lawyers need help. Of course, there is no guaranteed solution, that is, from the outset, one can guarantee that a certain strategy will produce positive results ending in Tseng's immediate freedom, but, there are viable options that certainly will provide a more colorable assurance of a positive outcome than waiting another month (actually more than a month, almost a month and a half) for bank results, while Tseng remains incarcerated and away from her family and especially her children.

I believe the government and judge Lomeli are taking advantage of the fact that Tseng's lawyers are nice people, who will continue to adhere to the demands of the prosecutor for bank records, rather than accepting the fact that Tseng has done enough to show that she has sufficient "clean" funds to cover her bail. Although I believe that the prosecutor is doing her job, and as far as the government is concerned, is doing a good job; I also believe that the government, at this point, is acting in bad faith ( by continuing to demand more proof of bank statements when there is sufficient proof in the record that Tseng has sufficient funds, and even if there isn't sufficient independent funds to satisfy the $3 million bond, there is likely sufficent funds to satisfy slightly less than $3 million). So now, Tseng's lawyers must proceed accordingly, and develop a strategy that will defeat the government's bad faith and provide Tseng with some relief.

I want to make something clear, my main concern here is Dr. Tseng's constitutional rights with respect to bail and the outrageous amount of time she has spent behind bars, being away from her family, and especially her young children, and serving sentences that she has not been tried and convicted of. Once Tseng is released, I will likely not involve myself in commenting on her case, in terms of her lawyers' trial strategy, e.g., Tseng's pending motion to dismiss (995 motion), unless it affects her constitutional rights or involve racial discrimination. Another exception will be defenses. I will likely comment on her defenses at trial, like I did about Dr. Conrad Murray's defenses, because I believe, like Dr. Murray, as a medical doctor, Tseng has some special defenses that she should assert at trial. Murray's lawyers apparently didn't read my blogs (or was just too arrogant to consider any other theories but theirs, even if they did read the blogs--putting themselves before their client) and did not raise the defenses at trial, and Murray was convicted (for that reason and other reasons, beyond the merits of his case). Murray will never know whether the defenses would have spared him a conviction and jail time or not. *I didn't actually spell out the defenses in my blog, I merely hinted about them, e.g., a defense that was provided by judge Pastor, through his jury instructions (there was no excuse for Murray's lawyers not to recognize and use that defense, and argue it to a jury).

Finally, in addition to being a blogger, I am an experienced federal civil rights, criminal defense, and appellate lawyer, who has been successful in bringing constitutional claims. I am open to assist Dr. Tseng by providing some limited pro bono consultation support in an effort to try and get Tseng released from jail. I believe Tseng's continued incarceration without a trial is a "grave" miscarriage of justice and a near absolute denial of her due process rights. Further, I believe that Dr. Tseng is now suffering from a physical ailment that requires medical attention, which only compounds the suffering. As I have previously stated, everyday, and each day, that Tseng continues to be incarcerated without a trial, she suffers irreparable harm.


UPDATE--September 11, 2013

The August 21st bail hearing has now come and gone, and Dr. Tseng is still incarcerated and serving a sentence, even though she has not been tried and convicted. Another hearing has now been scheduled for September 26, 2013; so that's another 30 days of incarceration. It's apparent that the government and the judge aren't cooperating with Tseng's lawyers to the extent necessary to cause Tseng's release; so , as I stated before, Tseng's release rests squarely on the shoulders of her attorneys. That is, while they are not guaranteed to work, there are other options that Tseng's counsel have open to them in trying to gain Tseng's release, and they are all based in due process and equal protection of the law.

Tseng's lawyers, in my opinion, in failing to rely on the Constitution in an attempt to free Tseng from incarceration, are coming awfully close to ineffective assistance of counsel. They can't continue to rely on state law, it's not working. They must resort to the California Constitution, and/or the U.S. Constitution, where applicable. In any event, they must do more than they're doing now.


UPDATE--October 1, 2013

The September 26th bail hearing has now past. And, as expected, Tseng continues to be incarcerated. Judge Lomeli continues to sing the same old song, i.e., an insufficient "papertrail", that is, Tseng's lawyers have failed to satisfy Lomeli that there is a sufficient disconnect between "good" money and "bad" money or property in order for Lomeli to conclude that there is sufficient enough good money or property to satisfy the bond requirement necessary for Tseng's release.

And, for their part, Tseng's lawyers continue to sing their same old song as well, i.e., Tseng's release is dependent on satisfaction of state law, i.e., demonstrating to Lomeli's satisfaction the elimination of commingling of funds and/or "changed circumstances" in order to file another bail motion.

Which means nothing has or will change, which means that Tseng will likely remain incarcerated throughout her trial. Indeed, her lawyers appear to accept the fact that she will be because they are now focusing on her trial rather than her bail. The next scheduled hearing, sometime in November, is not a hearing for bail review, rather it is a hearing on a motion to dismiss (995 motion)(regarding the case itself). Lomeli has already expressed some dismay with preparation of the motion. That is, one of Tseng's counsels suggested that a summary may be about 50 pages long, and Lomeli responded that a legal team in another case had submitted a 30 page summary and he thought that that summary was borderline too long.

At this point, in my opinion, Tseng's lawyers have crossed the line into ineffective assistance of counsel. Largely because they have been unabled to obtain Tseng's release based on their litigation strategy, and they stubbornly refuse to explore other options or methods of acquiring Tseng's release. It is ineffective assistance of counsel, in my view, for Tseng's lawyers to concede defeat on the issue of bail while there are still colorable options open to them that they have not tried or explored. One thing seems clear, if Tseng is going to be released, it will have to be on constitutional grounds. Lomeli, I believe, has made it clear, that he will not easily find a sufficient "papertrail", so Tseng's lawyers are wasting their time pursuing that option (but apparently, they don't think so; they had some bail person available at the hearing, just in case Lomeli had a change of heart).

I think Tseng's lawyers are reluctant to challenge Lomeli, even to the extent of appealing his rulings. One of Tseng's lawyers claims that the team had raised an Eight Amendment excessive bail issue before Lomeli, but Lomeli denied the motion. I asked if the team appealed. She intimated that they had not, and intimated a reluctance to do so, parlaying that it might be inappropriate. I agree under ordinary circumstances, appealing a simple issue, such as an evidentiary ruling, might be inappropriate (i.e., appealing an interlocutory order), but a bail issue involving continued incarceration of a person before trial is another matter.

I continue to believe that Tseng's constitutional rights are being violated and that Tseng is suffering and continues to suffer irreparable harm for each day that she remains incarcerated. Further, I believe that Tseng's lawyers, as long as they refuse to pursue other options besides state law in an effort to free Tseng, are providing ineffective assistance of counsel.


UPDATE--January 31, 2014

On January 24th, I attended a hearing on Tseng's pending 995 motion (to dismiss), which was once again, postponed to a later date.

It is clear now that Tseng's lawyers have simply given up on her bail situation and are now simply directing their efforts toward the so-called motion to dismiss and trial. I have not read the motion to dismiss, so I don't know what the bases for the motion are. But, I doubt, whatever the bases are, that the motion is going to be successful before Lomeli; and even if it is, it won't do anything in terms of getting Tseng out of jail.

Moreover, I was present when Tseng was brought into court by the deputies. She did not look well. She didn't look well walking. I think her confinement is taking a toll on her physical being.

I also had an opportunity to speak with the government attorneys and one informed me that there had been a recent bail hearing, where upon Tseng's bail was once again denied, without prejudice (which means that she can try again later).

I believe Tseng's circumstance is at the point that the Court can and should intervene on her behalf in order to protect her constitutional rights and her physical well-being. It is clear that her counsel are not taking steps that are available to them in attempting to get Tseng released on bail. That is, her lawyers are simply not representing her "zealously" regarding the bail issue. They have taken no steps to challenge Lomeli's decisions regarding bail and they have taken no steps toget another judge, leaving Tseng to rot in jail and serve a sentence without a trial.

More later.


UPDATE--September 5, 2015


TRIAL TIME

This week, Monday, Tseng's trial began. Unfortunately, I missed the opening statements. I am more disappointed about missing Tseng's opening statements than I am the government's. I think I know the government's position. I would like to have seen or heard whether Tseng's lawyer had come up with any theory that would provide Tseng with an adequate defense; because based on counsel's pre-trial representation of Tseng, Tseng doesn't stand a chance of an acquittal. Her counsel simply does not represent her "zealously". But, that's Tseng's choice.

The only thing Tseng appear to have in her favor at the beginning of trial is a seemingly fair jury, or a jury of her peers. I will provide the specific jury makeup the next time I publish the blog, but, the jury is diverse, African-Americans, Hispanics, Asian-Americans, and whites. *As a matter of fact, the diverse jury is the only thing that Tseng will have in her favor period (beginning and throughout the trial); and even that will be cancelled out by incompetent counsel.

More next time.


UPDATE--September 8, 2015

The specific jury makeup is as follows: 3 Black women, 2 Asian women, 2 Hispanic women, 1 Black man, 1 Asian man, 1 Hispanic man, and 2 white women.

Again, I missed Tseng's opening statement, so I do not know what Tseng's defense(s) is at this time. But, I know she has at least one, a major one (and, perhaps, the only one), but, it's up to her her lawyer to present it. We'll see. I have no confidence in Tseng's lawyer (although, I think she's a nice person, and she has a Black female assistant--her pretrial representation of Tseng was absolutely ineffective assistance of counsel).

TSENG'S CONVICTION WITHOUT A TRIAL

According to "Grace" (I'll get the full name later), the lead prosecuting attorney, Tseng has spent in excess of three (3) years in jail without a trial. That means that she has served a three year sentence without a trial. An absolute denial of due process, which can be attributed to both her counsel and the trial judge, Lomeli.

So Tseng is beginning her trial with a prejudiced (at least) trial judge, and an ineffective trial counsel. What does that equal to ?



TRIAL PROCEEDINGS

The Government's Case

Already the government has presented evidence that a pharmacist refused to fill several prescriptions ordered by Tseng because of the nature of the drugs and the amount. Further, the government presented a witness to testify that Tseng referred to some clients as "druggies", and stated, referring to people waiting in a waiting area for service, "they can wait, they're just 'druggies'"!

The trial is expected to last about 2 months.

More next time.


UPDATE--September 17, 2015

Last Thursday, 9/10/15, when I attended the trial last, proved to be an interesting day.

When I first arrived at the courthouse and courtroom (for the afternoon session of trial--1:30 p.m.--I actually arrived at about 1:40) and I had sat down to attend trial, the deputy-bailiff touched me on the shoulder and indicated that he wanted to speak with me outside the courtroom. So, when we went outside in the hallway, he stated that the judge (Lomeli) wanted to speak with me. But, at this time, he didn't tell me what the judge wanted to speak with me about. Therefore, I was concerned.

Later, after about an half-hour or so, the deputy returned and told me that the judge (Lomeli) wanted to speak with me about my contact with jurors (but, he, the judge, still wasn't ready to speak with me at this time--so I had to wait some more). At first, I was perplexed, but, within a few seconds, I thought about what it was probably about; and I relayed that to the deputy. But, I had to wait a while longer, until the next break in trial, before I could speak with the judge. Here's what happened : When I first began attending the trial, on the first day, after sitting down, I observed that one of the jurors was sitting in a seat-chair which was located lower and next to the left of the regular jury box(or seats)(that is, a separate chair or seat). So, when there was a break in the trial, and the jurors had left the courtroom and gathered in the hallway, I asked the juror who had been sitting in the chair was she a member of the regular jury (or some other person) (at this time, I thought perhaps she was serving another purpose altogether, i.e., not a juror, but some other function for the court). The lady replied that she was a member of the regular jury. Because of the placement of her seat, this seemed odd to me. So, I asked another juror whether the juror in question was a regular juror. And this juror told me that the juror in question was an alternate, not a regular juror. (Even so, I had never seen a juror, regular or alternate, seated in that position before).

Before I proceed further, I must clarify that my primary interest in determining whether the female juror was a regular juror or not was for my assessment of the racial and/or ethnic makeup of the regular jury(I wasn't really concerned about the alternates). That's why I wanted to be sure of whether the juror was a regular juror or not.

Proceeding on, when I was finally summoned into the courtroom, I was asked to approach the sidebar bench to speak with the judge (and the other counsel were also summoned to the sidebar). The judge then informed me that he had been informed that certain jurors had spoke to an individual (whom they described as me) regarding "alternates". I silently agreed. The judge admonished me about speaking to jurors (and I generally, with a few words, indicated that I didn't believe the restriction on speaking with jurors extended to the subject I had asked about--generally, jurors are admonished not to speak about the case with anyone--I believe I said "not to that degree" or something of that nature). Finally, the judge asked me if I understood that I was not to speak with any of the jurors in this trial in the future. I acknowledged that I did understand this. And that was it. The judge's conduct and procedure was entirely appropriate under the circumstances. Perhaps all judges, under the same circumstances, would not have found it necessary for the admonshment at sidebar, but, clearly, Lomeli was within his right and discretion to do so. I do not feel that I was treated unfairly.

But, the result of this activity was that I missed most of the afternoon segment of the trial. But, again, I am not blaming Lomeli. He had a right to do what he did.

CORRECTION: Finally, I must make a correction here : I stated above that "Grace" was the lead counsel on the government's team. That is incorrect. The lead counsel is John Niederman and "Grace" Rai is co-counsel.


More next time.


UPDATE--September 27, 2015

I last attended trial on 9/24/15. The major points were : A white female investigator (whose major task was the introduction of records) testified that, among other things, at least one record indicated that a relative of one of Tseng's patient's threatened Tseng with going to authorities if Tseng continued to prescribe drugs for a certain patient.

Also, a grandmother asked Tseng not to provide a certain patient (probably a grandchild) with drugs.

There were many records, obtained through search warrants, offered to show Tseng's prescriptions for drugs. Some records indicate that a sister called Dr. Tseng and threatened to go to authorities if Tseng continued to prescribe medicine for her brother.

NUMBER OF COUNTS : 24. I discovered from Tracy Green, defense counsel, that the total number of counts is 24, including the murder counts--many counts are for misuse of prescription drugs). The government always manages to stretch these counts out to multiple counts (similar in Richard Alarcon's false statement/perjury case, I believe the total number of counts were 24).

Finally, there were many records introduced to show that certain medical records became more extensive or detailed in the year 2012 than they were in 2010. The government will probably explain the connection more thoroughly in its closing argument.

The second witness for me was an expert physician, Ezekial Fink I believe (the spelling is probably off). This witness was called out of order in order to allow him to return to Houston, Texas for business he has there (where he's from). This witness presented a prima facie case of violation of the standard of care by Dr. Tseng, and his testimony would probably be sufficient for the government to meet its burden of proof in a negligence case. Dr. Fink (again, excuse me if I'm wrong about the name--I will get the name clarified for an updated blog) testified regarding some young people being prescribed drugs and returning for a refill before the prescription time has ripened, or coming in early; and apparently, Dr. Tseng would provide refills without questioning this. He testified that this was a violation of the standard of care. He testified that, based on the history of some patients, they required "addiction specialists" for treatment, and that Dr. Tseng, who treated these patients was not an addiction specialist, and therefore, this also was a violation of the standard of care.

Dr. Fink testified that patients on heroin are by definition "addicts" and that these type of patients should be in the hands of someone who is licensed to treat them, i.e., addiction specialists. Moreover, he testified that, on multiple occasions, Dr. Tseng exhibited an "extreme departure from the standard of care".

So, if this was a negligence or malpractice trial, it is clear that the government have met its burden of proving a violation of the standard of care, on its way towards proving malpractice. And, it would require a powerful defense from Dr. Tseng in order to overcome a malpractice claim brought by one of the individuals prescribed the medication she prescribed and under the circumstances she prescribed them, and who also suffered harm.

However, and fortunately for Dr. Tseng, this is not a negligence or malpractice case. This is a murder case. And the government must show much more to succeed in proving murder.

So, now, I am anxiously awaiting the next stage, and probably the most important aspect, of the government's case, which must point to intent to cause serious bodily harm, and such intent to cause such harm that it is not just a crime, but murder (whatever the degree). Again, I was not present for opening statements, which would probably have provided me with some insight into the government's theory; but, even without that insight, as a criminal defense lawyer myself, I know that the only theory that the government can rely on is a gross negligence or recklessness theory. However, even those theories require some degree of criminal intent.

More next time.


UPDATE--October 2, 2015

The last day I attended trial was Tuesday, September 29, 2015. On that day, the government presented several "forensic scientists", who presented scientific evidence from the Orange County Crime Lab. Most of this information was beyond me because I didn't know the most important point to be made by the testimony. I gathered that certain drugs were found in the system of certain deceased individuals, and that there was an issue regarding the amount of drugs being "quantifiable" or not, or detected or not, or "detected, but not quantifiable", but, I didn't get the point. The government will probably explain the point more fully and understandable during closing argument.

But the main witness, as far as I'm concerned, and the most interesting witness was Justin Smith, a former client of Dr.Tseng. Smith is a white male, in his late 20's and testified that he attended Tseng's clinic in Rowland Heights from 2009 to 2010. Smith said he found out about Dr. Tseng through about 10-20 people, generally school kids, who had obtained drugs from Tseng before. Smith testified that he was a drug addict hooked on heroin when he started going to see Dr. Tseng, but that he didn't inform her of that fact. He stated that he used the reason (or excuse) of a "back pain" to ask for drugs from Tseng, because He had been told from others Tseng had prescribed drugs for or treated that this was the best or easiest way to go to obtain drugs from Tseng. He testified that one time it was so crowded when he visited Tseng's office for treatment or drugs that he went to a room with a patient for more room or a place to sit or stand.

Smith testified that when he visited Tseng (for prescriptions,refills or whatever), he was never there more than 10 minutes. He said that he usually loooked pale when he went to see Dr. Tseng, and that he was usually high. He said in his first visit with Dr. Tseng, he complained of back pain (in his lower back--slipped disc). Dr. Tseng took an X-Ray. However, I gathered from this testimony that he actually did have pain in his back (it wasn't just an excuse). He testified that when he went to see Dr. Tseng that he would usually get 3 types of drugs (I couldn't get the correct spelling of the names, so I won't try and name them).

From my perspective, this witness was CANDID, HONEST, AND TRUTHFUL. I don't think he attempted to help one side or the other. I think he just told the truth.

Even though this witness was called by the prosecution (and he admitted that he didn't want to be there--he was subpoenaed), from my perspective, he provided as much assistance to the defense as he did to the government, i.e., he helped both sides.

In my next update, I will provide more of his testimony, while discussing how I believe he helped both sides. Defense counsel, Ms. Green, did a good job of getting out of him what she needed to defend Tseng.

More next time.


UPDATE--October 4, 2015

Some quick points re: Smith's testimony that supported the prosecution's and Tseng's cases :

The Prosecution : (1)People, many and mostly, young people, came from long distances, e.g., Dana Point, Orange County, Riverside, etc., to receive drugs from Dr. Tseng; (2) Smith said that he would go in early to get prescriptions and Tseng would post-date the prescriptions; and (3) at one point, all the major drugstores would refuse to fill Tseng's prescriptions.

The Defense (Tseng) : (1)He lied to Tseng to get drugs,e.g., he claimed that he was having chronic pain that wasn't getting better. In fact, he claimed that it was getting worse; (2) While being treated by two doctors (Tseng and Dr. Elzik or Elzick?), he told multiple lies to both doctors,and he can't remember what lies he told; and (3) He was "manipulating" both doctors; and he admits that he was being dishonest with Dr. Tseng.

More next time.


UPDATE--October 10, 2015

On *OCTOBER 7, 2015, I attended trial after missing some days. The only witness I heard testify was Dr. Strouser(?). He testified to the standard of care.

Therefore, the last government witness before my break (in attending trial) and the first government witness after my return both testified to the standard of care. Therefore, this signifies that the government is placing a lot of weight on the standard of care, and the violation thereof, for its case.

Dr. Strouser testified about the standard of care, and the violation thereof, regarding several past patients of Dr. Tseng. With nearly of all of them, he testified that Tseng had exercised an "extreme departure" of the standard of care in some way, either in recordkeeping, monitoring the patient, prescribing controlled substances or drugs, or in patient evaluation. Although there were occasions when he only found a "simple" departure. He testified as to patients : Nguyen, Rivera, Stavron, Simmons, Smith, Huggard, and Bender. For example, for Mr. Simmons, Dr. Strouser found an "extreme departure" regarding the evaluation of Simmons, and a "simple" departure re: recordkeeping.

For the most part, Tseng has no supporters attending the trial. Her mother was present during the morning session of this day of trial, but she didn't return for the afternoon session.

Lomeli warns Grace during the trial to move things along. And, he summons a sidebar, which I believe relates to that.

CROSS-EXAM

Green's strongest point in cross examination was that experts may differ as to their opinions on the standard of care. She should have asked more or done better, *especially regarding state of mind.

Lomeli abruptly interrupts Grace's re-direct (as she is in the middle of asking a question) and calls for a 15 minute break. It was rude and disrespectful.

After the lunch break, THE GOVERNMENT RESTS ITS CASE

Thereafter, the defense moves for JUDGMENT OF ACQUITTAL, especially regarding the murder counts. *It was a *good and effective move and motion by the defense. It would have been ineffective assistance of counsel for Green not to move for a J.O.A.

It is clear that the motion was a somewhat, if not complete, surprise to Lomeli, for he was in the process of leaving the courtroom when Green said that she was moving for a judgment of acquittal. Furthermore, the government wasn't paying much attention to the motion either (Neiderman was also prepared to leave the courtroom). Lomeli simply states that there has been six weeks of testimony and the matter must go the jury. And he denied the motion.

While most M.J.O.A.s are as a matter of course *in certain cases, to protect a Defendant's rights, and particularly his right to bring the motion again at the end of trial, this motion had great substance (even though it was not written--and, for this case, it should have been).

Thusfar, unless the government presented some crucial evidence through witnesses that I missed (through my missed days of the trial)(and I know two of them were deputy coroners--unless a change was made, and they would not have made a difference for my analysis or conclusion), the motion was not only warranted, but should have been granted, especially as to the murder counts. There just has been no evidence of murder presented by the government, and the murder counts should not even go to the jury at this point. The court should decide this as a matter of law. But, I didn't expect Lomeli to grant the motion. If Lomeli has contributed to Tseng being incarcerated without a trial for over three years, why would he grant a judgment of acquittal? At this point, the most the government has presented is evidence of perhaps gross negligence. But, as I stated before, that's not enough.

The jury instructions will be very important in this case.


The last day of trial (and the last day I attended) was last Thursday, *OCTOBER 8, 2015.

The DEFENSE CASE BEGINS

The defense's first witness was Dr. Tseng's husband, Gene Tu (apparently, Tseng decided to keep her own last name).

Before Green could get into the substance of Tu's testimony, Lomeli interrupts her during background testimony, stating that he's given her "leeway", and tells her to move along, "let's move on". To me, this was uncalled for (as she was just beginning with this witness--her first witness) and inappropriate. And, to the extent that it gives the jury a negative impression of Green (as if she's doing something wrong), it was prejudicial.

Dr. Tu testified that the government "ransacked" his entire office when they effectuated a search warrant and searched his office (as part of this case). He said that they locked him and Tseng in a office as they searched the office, and in the end they destroyed certain computer equipment. In other words, they showed no regard for his property in their search.

More next time.


UPDATE--October 11, 2015

Dr. Tu testified that the DEA officials came to the office in military-style wear and equipment, e.g., helmets, guns drawn, etc. They took the server and computer. They broke the copier and printer; when the computer was returned, most of the memory was missing--a lot of time was missing.

Tu stated that Tseng was more concerned about taking care of patients then the organizational part of the practice. So her organization may have been lacking.

He testified that the office's practice was to attempt to get records of patients on drugs to get their history (of drug use) for pain medication.

I couldn't ascertain the point of defense counsel going through all bank accounts and income information. She probably knows the point, but I just couldn't get it, and it was boring examination to me. Finally, Tu testified that both he and Tseng received pain management training. He stated that some drug-makers came to the office to offer training for the use of their drugs, e.g., opana, at least once or twice a month.

CROSS EXAMINATION

Tu testifed that Tseng would get depressed when patients died.

Most of the cross-exam was directed to Tu's income, that is, how much money he and Tseng were earning. Grace seemed to be focusing on the income of Tu and Tseng to demonstrate that they were making a lot of money (and the connection could be drawn that they were making huge sums of money from prescribing drugs and abusing patients). However, I believe most of the information was irrelevant as to the charges against Tseng. And, apparently defense counsel and the judge also felt that way, because Lomeli sustained at least two objections on relevance grounds. Incidentally, the sums earned were not "millions" of dollars, but, only (for the average doctor)hundreds of thousands, e.g., $200,000.00, $300,000.00 or $400,000.00. And that's why it was nearly, if not completely, irrelevant. Clearly, Tu and Tseng are not rich, if so , there would not have been any problem with Tseng making bail.

On the whole, Dr. Tu was a good witness for Tseng. Although, he did appear to hesitate at times answering some questions, he also appeared to be honest, in view of the circumstances. For instance, he admitted that Tseng would at times make or provide "early refills" of drugs for patients.


Next week, Tuesday, jury instructions and defense's expert.


UPDATE--October 17, 2015

From Tuesday, October 13, 2015 :

Tseng will not testify (Lomeli gives oral waiver agreement to Tseng. Additionally, defense's proposed expert also will not testify.

Lomeli and counsel go over draft jury instructions.

The government(through Neiderman) , during jury instruction discussion, states "we are not saying that she intended to kill anyone".

A definition of intent: Tseng intended to do what she did.

A jury instruction 3.31 was cited : concurrence of act and specific intent. I think was an important instruction.

Jury instruction 8.31, second degree murder defined. Another very important instruction.


From Wednesday, October 14, 2015 :

Morning Session

Discussion of exhibits. Most exhibits will be allowed. Lomeli will not allow transcripts to go to the jury.

Green argues some financial records are "more prejudicial than probative."


Afternoon Session

The jury is seated.

Grace reads stipulations between counsel.

Both sides agree to REST before the jury. Initially, I was alarmed that Green didn't make another JOA motion (at the conclusion of all the evidence or both gov't and defense cases) , but I learned later that in California, it's not required. In some jurisdictions or states, it is (in order to preserve the issue of sufficiency of the evidence on appeal).

JURY INSTRUCTIONS

Lomeli then reads the jury instructions to the jury.

Some important instructions in my view :

Beyond a reasonable doubt defined; gross negligence defined; ***second degree murder defined (very important)--an unlawful killing of a human being with malice aforethought; if the jury cannot decide between murder and manslaughter, it must find manslaughter.

The difference between murder and manslaughter is malice; murder requires malice, and manslaughter does not.


End of Jury Instructions


**NOTE : There is some very important information that should be added here, but, I will add it later out of respect for jury deliberations *and a jury verdict.

*NOTE (November 1, 2015, after the jury verdict): This is the important information referred to above : As judge Lomeli was leaving the bench for a brief recess, he says to Niederman (if not the exact words, similar to the exact words, and certainly the meaning of the exact words) "You're gonna knock 'em out" (hun)? Niederman doesn't respond. Then Lomeli repeats the same phrase "You're gonna knock 'em out (hun)? This time Niederman responds; again, I could not ascertain Neiderman's exact words, or even any words that I can attempt to relay, other than it was a cordial affirmative response, e.g., "Yea, I'll do the best I can." Something of that nature. But, to reiterate, I could not ascertain Niederman's exact response. COMMENTARY: Clearly, Lomeli was "rooting" for Niederman and the government, encouraging Niederman to do a good job in his closing argument, which was coming up after the break. I believe (and in my opinion) Niederman recognized that the judge's comments were inappropriate or improper, and that is why he did not answer or respond to the question the first time it was asked by the judge. The second time around, in my opinion, Niederman felt compelled to respond in some way, out of respect for the judge. Further, at this time, defense counsel Green and her assistant were not at their table. I believe Green was in back with her client, Tseng, out of the courtroom; I'm not sure about her assistant. But, there were still people in the courtroom. But, at this time, only Niederman was at the prosecutor's table, Grace was not there.

Although there were other people sitting in the front row, as I was, only an experienced lawyer would pick up on the relevance of the judge's comments made at the time. Most lay people would simply accept the exchange between Lomeli and Niederman as a cordial exchange between judge and a lawyer.

**However, as an experienced criminal defense attorney, I believe the scenario is a ground for a new trial.

***I informed defense counsel Green and her assistant that I would be publishing the information in my blog after the verdict. I did not tell either Green or her assistant what the information was, either before or after the verdict, although I did tell them that "a" scenario existed that I felt might be important, but that in respect for the province of jury deliberations and a jury verdict, I would refrain from being more specific regarding the incident until after the verdict.


CLOSING ARGUMENT Begins


The Government: The government's main or most important argument(s), in my view, were : (1) the concept of "appreciation of the risk" ("I understand what I'm doing and I'm going to continue doing it anyway"); (2) "standard of care"--an extreme departure is gross negligence.

Green objects: "it's not the law"
Lomeli: "Overruled"

*When I note objections, it doesn't necessarily mean that the objection came immediately after a point that I just made. It simply means that it occurred during this time period that I am noting certain things.


(3) There's a difference between express malice and implied malice--"we're arguing implied malice."


(4) conscious disregard and appreciation of the risk --"the heart of the malice (implied malice)".

Green objects (doesn't state evidence)
Lomeli: "overruled"


Green objects (misstates evidence)
Lomeli: Overruled

*This conduct was "So far beyond the standard of care that it's beyond 'extreme violation of standard of care'". (smile)

Then, Niederman goes through the individual counts and the charges (most are illegal prescribing drugs). I will only note the Counts where either an important point was made and/or Green made objections:

Count 1 -"appreciation of the risk"

Counts 2 and 3:

Green objects: "misstates the evidence"
Lomeli: Overruled

Counts 4 and 5:

"appreciation of the risk" and "conscious disregard";

Count 13:

Green objects: "misstates the evidence"
Lomeli: Overruled


CONCLUSION OF THE DAY : 4:00 P.M.

UPDATE--October 21, 2015

From October 15, 2015

The government continued with its closing argument.

*Niederman continued to go through the various counts, emphasizing "multiple extreme departures" (from the standard of care.

Finally, the gov't concluded with emphasizing a "pattern of appreciation of risk and conscious disregard".


DEFENSE CLOSING ARGUMENT

The main point I must make about Green's closing argument is that it was more of a "teaching" argument than an "advocacy" argument. A fatal flaw was not stressing the jury instructions more; especially the instruction defining second degree murder.

More next time.



UPDATE--October 22, 2015

From October 15, 2015

However, the "fatal flaw" noted above will not be fatal if the jury decides in Tseng's favor. We'll see.

But, Green made positive points for her client also. She stressed that Tseng had practiced infectious disease medicine as a specialty before joining her husband's practice. Tseng's practice was "urgent care" medical treatment.

Green stressed that Tseng trusted her patients, and that Tseng worked in the "trenches".

The most important points made by Green in my view were :

(1) There's a difference between the medical board standard of care and criminal standard of beyond a reasonable doubt. You can't make medical board violations of standard of care into criminal violations. (2) "A mess of boxes doesn't mean she's a bad doctor". (3) There's a difference between intent and criminal intent. (4) The government must prove lack of "good faith" for the prescription counts.

However, another flaw of Green was that she didn't present any of the evidence of good faith to the jury. Even the government, indirectly, presented some documentary "evidence" of Tseng's good faith. In fact, Green should have relied on some of that exact same evidence that the government used (for its argument) to demonstrate Tseng's good faith.

END OF October 15, 2015 session. The JURY leaves the room.

After the jury left the room there was some discussion in its absence. The government objected to a part of Green's argument; and Lomeli warns Green not to address anything about a certain subject matter.

END OF DAY!


From October 16, 2015

DEFENSE CLOSING ARGUMENT continues :

First, Lomeli asks Green how long is she going to be (with her argument). He says she has already had 1 and a half hours. It appears to me, for this type of case, to be unfair pressuring of Green.

Green then continues with her closing.

Green comments on evidence that could have been obtained from a pharmacy, but wasn't.

Again,Green's presentation seems more like teaching than advocacy, but that may be effective for some jurors.

I think she wasted a lot of time going through individual witnesses to point out deficiencies in their testimony; the time could have been better spent.

However, she made a good point re: malice and whether Tseng caused the death of patients. She also made a good point re: witness Anderson, stating that he testified that the mode of death of one patient cannot be determined and that there could not a determination between "suicide" and "accident". This was a very important point for the
defense.

MY NOTE : If the cause of death is undetermined, and not a homcide, how can Tseng be charged with murder for this particular patient? This goes to the point of an "unlawful killing" required for murder.

Green points out that good faith was established in records of Dr. Tseng for patient Nguyen. This was good and important. (But, I don't recall her showing or pointing this out in these records). She should have argued this some time ago. And, she should have emphasized this point more. This argument was crucial to multiple counts.

As Green's closing near its end, she does begin to point out Tseng's good faith through Tseng's records. For example, for undercover officer Brian Sale, Tseng says she does not write prescriptions for certain drugs; for "Jesus" Gomez, Tseng states that Vicodin should not be used like that, and she declines to give another drug (suboxene?).

Finally, Green, in another good point, emphasizes "personal responsibility"--"there is a point where there is personal responsibility".

Green concedes guilt on one count, re: Joseph Rau, but says the jury should find Tseng not guilty on the remaining 23 counts.

END OF MORNING SESSION



AFTERNOON SESSION

GOVERNMENT'S REBUTTAL

Niederman states that Defendant (or defense counsel) argues from two sides of her mouth: that the gov't did too much, but also, that the gov't didn't do enough.

He refers to instructions and says "accept the reasonable and reject the unreasonable".

Green : Objection, "misstates the testimony"
Lomeli: Overruled

Niederman : standard of care is relevant to decide if the Defendant is acting in good faith.

Green : Objection : "misstates the law"
Lomeli: Overruled

Niederman: Defendant's medical records were manufactured by Defendant; so they can't be relied upon.

Defense theory is that everybody else is to blame except the Defendant--the "wheel of blame".

Defense wants to shift the blame to others: drug companies, pharmacies, office staff, etc.

Green : Objection, "misstates the evidence"
Lomeli: Overruled

Instruction 8.51 murder v. manslaughter

Green : objection, misstates the law
Lomeli: Overruled

The motive is wealth

Green : Objection, "misstates the evidence"
Lomeli: Overruled.

END OF REBUTTAL


From October 19, 2015

Jury Deliberates "No verdict".


From October 20, 2015

No Verdict


From October 21, 2015

No Verdict


*From October 22, 2015

No Verdict



UPDATE--October 31, 2015

From October 26, 2015

Juror calls in sick.

No Verdict


From October 27, 2015

Deliberations continue.

No Verdict


From October 28, 2015

A jury question

The prosecutor apparently received a call re: a jury question, and showed up in the courtroom; but Green wasn't here, so the prosecutor asked to be "texted" when Green arrives and he and his entourage left.

Green arrives, and now must wait for Niederman. Niederman arrives and the judge comes into the courtroom.

The question (paraphased--maybe not exactly): Do we have to be unanimnous in a not guilty verdict on second degree murder to vote for manslaughter?

Lomeli reads his response to be read to the jury. The jury comes in. Tseng is present also.

Lomeli repeats the question. Then he reads his response: Jury Instruction 17.49. It's sort of confusing to me. ***NOTE: It became clearer after reading the actual jury instruction itself (17.49), but it was confusing the way Lomeli read it (in other words, its confusing when read "fast". Basically, in relevant part, the jury instruction reads as follows : "If you find the defendant not guilty of the felony(ies) charged (here it would be second degree murder) charged, you then need to complete the verdicts on the lesser included offenses by determining whether the defendant is guilty or not guilty of the lesser included crimes, and the corresponding verdict(s) should be completed and returned to the Court signed by the foreperson."

End of day. No Verdict.


From October 29, 2015

9:50 a.m. Lomeli confer with both counsel off the record in his chambers.

***In an extraordinary move: I have never seen this done before-- Lomeli allocates time for both the lawyers to re-argue their position regarding second degree murder, that is, why the jury should find or not find second degree murder (as a means of clarifying the jury instruction) DURING JURY DELIBERATIONS, OR AFTER DELIBERATIONS HAVE BEGUN. Again, I have never seen this done before. I believe Green must have requested this option, but, honestly, I'm not sure (I say this because Green was making a point before counsel and the judge went into his chambers).

10:30 a.m. Green is not present at 10:30, but Niederman is here. Then Green appears about a minute or so later. Again, Lomeli calls for both counsel in his chambers. Dr. Tseng is brought into court.

Lomeli states that the court is responding to the jury question of yesterday.

Lomeli mentions jury instruction 17.10. Lomeli said that he would allow each side 10 minutes to argue.

***From the jury deliberation room, the jury says that they have resolved the issue re: the greater and lesser counts. Nevertheless, and in view of this, Lomeli says that he will allow the jury to determine whether they will need (or want) further argument from counsel. That is, whether it will be helpful to them.

The jury enters the courtroom.

Lomeli reads the jury instruction 17.10 to the jury.

Lomeli tells jury that he will leave it up to them as to whether they think additional argument is necessary for their determination of the greater-lesser crime issue.

Jury decides that they want to hear additional argument. Again, this is extraordinary! That argument is allowed after jury deliberations have begun.

After a coin flip by Lomeli, Green wins. At this point, I was confused as to who Green wanted to go first.

11:03 am Jury enters the courtroom. Alas! Niederman goes first (so this must have been Green's choice, since she won the coin toss).

NIEDERMAN ARGUES

Basically, Niederman re-argues that the jury is to "imply malice", and that the defendant (Tseng) "appreciated the risk". He compares the case to a drunk driving case. "She knows they're addicts; she knows what she's doing is killing people"!

Green: objection,"misstates the facts"
Lomeli: Overruled

GREEN ARGUES

For Niederman to prevail, there must be a "known addict"; that is, there was no evidence of the individuals being a "known addict" by Tseng.

"Tseng was trying to help patients". "The coroner determined that several deaths were accidental." "These were tragic accidents and not murder or manslaughter", "as the Orange County coroner's office has determined in these cases." "You still must find 'causation' factor". "The prosecution intentionally put all these cases together". "Some prescriptions were made without realizing the risks involved".

11:32 am END OF ARGUMENTS

Jury continues to deliberate

End of day. NO VERDICT


From October 30, 2015

9:30 a.m. Deliberations continue

Morning session-- no decision (no activity).

1:30 p.m. Afternoon session

2:30 p.m. The court clerk comes out in hallway and announces (primarily to the alternate jurors in the hallway)(but others in the hallway can hear) that there are VERDICTS!!

He then announces that the verdicts will be read or announced in 45 minutes.

Lomeli then states to the courtroom that the jury has reached verdicts; alternates are summoned into the courtroom; and the bailiff confiscates a cellphone from one spectator (who, apparently was actually using the cellphone in the courtroom after being instructed otherwise).

Juror #10 is the foreperson.

The verdicts are announced (I couldn't write fast enough to capture all of the information re: the specific names of the specific individuals who the verdicts were directed to, so I will only provide the verdicts):

Count 1 --Second Degree Murder (SDM) : GUILTY

Count 2 --Second Degree Murder: GUILTY

Count 3 --Unlawful Prescription of Controlled Substance (UPCS): GUILTY

Count 4 -- (SDM): GUILTY

More next time.


UPDATE--November 1, 2015

From October 31, 2015 (continued)

Count 5 --UPCS : Guilty Count 9 -- UPCS : Guilty Count 13 -- UPCS: Guilty
Count 6 -- " : Guilty Count 10 -- " : Guilty Count 14 -- UPCS: Guilty
Count 7 -- " : Guilty Count 11 -- " : Guilty Count 15 -- UPCS: Guilty
Count 8 -- " : Guilty Count 12 -- " : Guilty Count 16 -- " : Guilty

Count 17 -- " : Guilty Count 21 -- " : Guilty
Count 18 -- " : Guilty Count 22 -- " : Not Guilty
Count 19 -- " : Guilty Count 23 -- " : Guilty
Count 20 -- " : Guilty Count 24 -- Unlaw. obtain. Prescription by fraud : Guilty

Therefore, Tseng was found guilty of 23 Counts, including the 3 murder counts, and found not guilty of one count.


End of October 31, 2015 blog update.


More next time on fair trial analysis and the bottomline.


UPDATE--December 19, 2015

On Monday, December 14, 2015 a scheduled sentencing hearing was held. However, instead of sentencing, the only thing that occurred were family (victim impact) statements regarding several deceased individuals. After the statements were concluded, and the judge asked if the defense had anything to say, Green stated that her client, Dr. Tseng, understood everything that was said and that Tseng would entertain everything that was said, or that she (Tseng) heard what was said (and would take it to heart).

At least two witnesses relayed that the prosecution's recommended sentence would be 30 years to life, and at least one of the witnesses said that she felt that that would not be sufficient.

Green did not mention the conversation between Lomeli and Niederman that I discussed above.

The next scheduled sentencing, the actual sentencing, is scheduled for February, 2016 (I believe February 5, 2016).


More next time, hopefully, starting the fair trial analysis.


**UPDATE--February 9, 2016

On Friday, February 5, Dr. Tseng was sentenced : 30 years to life in prison, premised on three murders. As part of the sentencing, Tseng, likely on the advice of her lawyer, Tracy Green, submitted a 4-page written statement. She also made a statement in court, whereby, among other things, she apologized to both the victims' families and her own, and the medical society. But, beyond the apologies, she made statements that likely amounts to "admissions" in the law (especially with respect to the illegal prescription charges). Apparently, Green had Tseng make this statement in an attempt to obtain a more lenient sentence from judge Lomeli. Please! Did she really think any statement would convince Lomeli to reduce the anticipated and recommended sentence by the government? Especially after Lomeli had failed to reduce Tseng's bail during the trial. So, all a statement of the type made by Tseng could do would be to harm her case on appeal; and, hopefully, she will appeal. In other words, the statement that Tseng made should only be made if one does not intend to move for a new trial or appeal. And, it seems clear from a lady standing with Tseng's mother after the sentencing, that Tseng intends to appeal.

I didn't get a copy of the letter itself, but, in relying on some excerpts from the letter published in the L.A. Times, February 6, 2016, the following was revealed :

"In a four-page written statement submitted to the judge before her sentencing, Tseng brought up the same point. 'I terribly regret that even after learning of the overdoses, I did not investigate my prescribing practices to see if they played a role,' she said, adding that she doesn't believe she was ever properly trained in addiction medicine or pain management. 'I told myself that my patients' conduct was beyond my control,' she wrote. Most of what she learned about pain management, she said, came after DEA agents and medical board officials raided her office in 2010.

In the letter, Tseng said that she now realizes that personal problems--undiagnosed depression, hoarding and difficulty juggling work and taking care of her children--interfered with her abilities to be a good physician. 'I was not the doctor I should have been for the patients who came to me,' she wrote. 'I know that being remorseful for my failures as a doctor and as a person does not reverse time or does not help the families heal their grief. . . . No words can properly describe the sadness.'" L.A. Times, supra.

Advising and/or allowing Tseng to submit a letter of this type with an intention to appeal was another example of ineffective assistance of counsel by Green.

Tseng was convicted and sentenced because of ineffective assistance of counsel, not because of the facts, evidence, and law of her case. Tseng clearly should not have been convicted of murder, based on, if nothing else, the definition and instruction on murder (or the elements of murder).


THE FAIR TRIAL ANALYSIS

Did "Lisa" Tseng receive a fair trial?

The Jury

Tseng clearly had a fair jury, which represented a fair cross-section of the community, as well as a jury of Tseng's peers. There were 3 Black women, 2 Asian women, 2 Hispanic women, 1 Black man, 1 Asian man, 1 Hispanic man, and 2 white women. Moreover, the jury took about two weeks of deliberation before reaching a decision, which indicates that it was "deliberate". And, the jury asked questions during deliberations. All of this points to a fair jury. Tseng cannot complain about the jury.


The Judge

Tseng received an unfair judge. Lomeli's unfairness began during the bail proceedings and continued throughout the trial, even if only through presumption. And, clearly, he should not have sentenced Tseng (after the Lomeli-Niederman conversation). There is also serious question as to whether he should have allowed additional closing argument during jury deliberations. I believe he allowed it because he believed that Niederman would perform better and get a second chance to further impress the jury of a commission of murder. Niederman did, in fact, in my opinion, perform better. Furthermore, his sentence was unfair because this was a novel case of murder (indirect murder at that), yet, Tseng received a sentence that would normally be assigned to a malicious, direct (and premeditated) murder.


The Prosecution

Overall, the prosecution was fair. I don't believe there was any evidence of the government withholding evidence, or performing any other flagrant acts. Green objected quite a bit during the government's closing statement, but this was just standard litigation. The government counsel did their job, and they did it well. I don't blame Niederman for the Lomeli-Niederman conversation. Niederman did not initiate the conversation. I think the government played a part in keeping Tseng incarcerated prior to trial, but that was its job. But, if there was any sense or degree of unfairness by the government, this was it.


The Defense

Overall, defense counsel provided Tseng with ineffective assistance of counsel, and this ineffectiveness caused Tseng to be convicted. The ineffectiveness began with the bail hearings (which caused Tseng to be incarcerated at least 3 years before a trial), continued through trial by defense counsel not "advocating" or "zealously" representing Tseng, and ending with sentencing (by allowing the 4-page statement to be submitted and read). Moreover, Green never sought help, and she needed it.


More next time.

CHRISTOPHER DORNER: DEATH by either SUICIDE or MURDER; the DORNER REWARD : Likely a REWARD for a MURDER

Los Angeles, California


February 13, 2014
(Today's date)


May 8, 2013
(Original date)

*Denotes change or new infomation added to original blog

**UPDATE (Denotes NEW information added to blog after original publishing)



When Chris Dorner's body was finally recovered from the burned-out cabin in Big Bear, I think we all believed and concluded that he had died during the course of the barricade, shootout, and fire. But, how he died is nowhere near as conclusive, and in large part depends on what one chooses to believe from the media news and the County coroner. And, depending on what one believes, Dorner's death was either by suicide or murder. Here is what I believe : I believe that during the barricade and fire, law enforcement heard a single gunshot coming from the cabin. I believe the gunshot heard was a self-inflicted gunshot by Dorner. I believe the gunshot was to the head of Dorner. At that point, only Dorner knew for sure whether the gunshot actually killed him, and he cannot tell us, one way or the other. There is at least a possibility that the gunshot to the head did not kill him. That possibility is at least established by the example of former Congresswoman Gabrielle "Gabby" Gifford, who was shot in the head, near her eye, but miraculously survived and lived and continues to live and rehabilitate.

If the gunshot to the head did in fact kill Chris Dorner, then he died by suicide, and the coroner is correct in stating that he died from a single gunshot to the head.

However, if Dorner did not die from the gunshot to the head, then he died from the fire. And, since that fire was intentionally started, or, at least recklessly started (law enforcement knew that when they fired "burners"---"shorthand for a grenade-like cannister containing a more powerful type of tear gas than had been used earlier. Police use the nickname because of the intense heat the device gives off, which often causes a fire", L.A. Times, "As Dorner fired, tactics got tougher", February 15, 2013; "Seven burners deployed", "And we have a fire". Id.---that they would probably cause a fire, and, they did!), it was murder, at the hands of law enforcement. Not only was it murder because the fire was intentionally started, but it was murder because the fire was allowed to burn without any attempt to put it out. And this I observed first-hand. Allowing the fire to burn without making any attempts to put it out was barbaric. It was more barbaric than what Dorner had done, because law enforcement,the fire department, and EMTs have a professional, civic, and moral duty and responsibility to protect and save lives, regardless of the circumstances, i.e., they are held to a higher standard than the common criminal; and in the face of these responsibilities, they allowed the fire to burn without any attempts to save Dorner's life. Even if Dorner wasn't dead from the gunshot wound, law enforcement, the fire department, and EMTs made sure that he would die from the fire. This was barbaric. Furthermore, law enforcement had motives to murder Dorner: (1) Dorner had killed one or more of their own--i.e., revenge (the same thing that they were charging Dorner with), and (2) they did not want Dorner to live and go to trial, so that he could testify as to why he did what he did--it would put the LAPD and racial discrimination on trial.

I choose not to accept the coroner's report at face value, i.e., that Dorner died only from a gunshot to the head, especially where it could have been conclusively proven if Dorner's body had not burned to near ashes, and where public officials intentionally allowed the body to be burned to this degree. And, while I do not know if the gunshot wound killed Dorner, I do know that the fire killed him if the gunshot didn't. Therefore, I choose to believe that Dorner's death was at least, in part, caused by murder, i.e., intentionally allowing the fire to burn and kill him, if he wasn't dead already.

Thus, Chris Dorner died from either suicide, by way of a self-inflicted gunshot wound to the head, or by murder, by way of public officials intentionally causing a fire in the cabin and thereafter, intentionally allowing the fire to burn and kill Dorner, if he wasn't dead from the shooting. No one really knows for sure, including the coroner.

THE DORNER REWARD--THERE SHOULD BE NO REWARD GIVEN

Although it appears that the Dorner reward is going to be allocated and split among four people, there ought not be a reward given at all. This is so because the reward was initially offered for Dorner's "capture and conviction", L.A. Times, "Four to split Dorner reward", May 8, 2013. And, there was no capture and conviction. A capture would have entailed the police actually physically apprehending Dorner and placing him under arrest. A conviction would have entailed the government putting Dorner on trial, aided by sufficient evidence from independent and outside sources to convict Dorner of murder or any of the other numerous crimes the government would have charged him with, had he lived and went to trial. Clearly, there was no capture and conviction; there was only a death, and the reward was not offered for the death of Chris Dorner. And, there is serious doubt whether the reward legally could have been offered for his death, at least without it being a reward for an assasination, not to mention the moral aspects. Furthermore, besides law enforcement officials or agencies, I doubt if any of the reward donors had the killing of Christopher Dorner in mind when they offered the reward. I believe most of the reward donors truly offered the reward to obtain information that would lead to the capture and conviction of Dorner. They intended for Dorner to be captured alive and face trial. Consequently, even though the information provided by the four people may have helped police "find" or discover Dorner, it did not lead to his capture and conviction. Therefore, the four people should not receive the reward. The reward was not offered for information leading to the "finding" of Chris Dorner, for if that were the case, then, clearly, the people providing the information should receive the reward, because the police certainly "found" Chris Dorner, based, at least in part, on the information they provided. But, I doubt if that much money would have been offered for simply "finding" Chris Dorner. In contract terms, there was no "meeting of the minds" between the reward donors and the information providers for the information providers to receive a reward for simply helping law enforcement to "find" Chris Dorner. The reward donors expected and intended that Chris Dorner would be captured and convicted with the information offered by the providers, and this wasn't done(in part because of police misconduct). Therefore, the terms of the contract were not met, and no one should receive the reward. The information providers should blame law enforcement for them not meeting the terms of the contract, because Dorner likely could have been captured, but for law enforcement's actions, which is why law enforcement is encouraging payment of the reward, notwithstanding Dorner was not "captured" or "convicted".


REWARD FOR A MURDER

Any reward given will probably be a reward for a murder. Because public officials intentionally ignited the fire that could have caused Dorner's death, and because the same officials allowed the fire to burn the cabin with Dorner's body in it, not knowing whether Dorner was dead or alive, Dorner was at least killed, in part, at the hands of public officials; because while we do not know conclusively that the gunshot actually killed Dorner before the fire, we do know conclusively that the fire killed him, and that conclusive killing was murder. Therefore, when the parties (and especially the white couple that Dorner allowed to live, when he could have intentionally or recklessly killed) accept the reward money, they should realize and understand that it is a reward for a murder.


**UPDATE--February 13, 2014

This update responds to an article in the L.A. Times, "Officers involved in gunfight with Dorner cleared", February 12, 2014. The San Bernardino County D.A. cleared all officers involved in the shootout with Christopher Dorner, so that none of them will face any criminal charges. SURPRISE!! Please! Did you think the D.A. would find anything else?

The LAPD was reponsible for all damage caused by Christopher Dorner, including the lives lost, and including Chris Dorner's life.

Notwithstanding the coroner's finding, according to the article, that "the massive burns to Dorner's body occurred after Dorner had killed himself", I'm not convinced. I believe the fire was just as much a cause of Dorner's death as any shot fired by Dorner himself. If the shot didn't immediately kill Dorner (and no one, including the coroner, knows for sure), then the fire absolutely did. I don't accept the coroner's finding of just "massive burns" rather than "burned beyond recognition" or near that.

The officers responsible for starting that fire are also responsible in part for Dorner's death. And, if Dorner could have been taken alive, that is, if the self-inflicted shot did not actually kill him, but merely wounded him; then, the fire-starting officers committed murder, with the requisite intent to do so.