PRESS ENTERPRISE article on Rex Gutierrez conviction:
http://www.pe.com/columns/cassiemacduff/stories/PE_News_Local_D_cass30.30c0567.html
Blogger Bob's comments:
..
While Rex G. may have done some things I would never tolerate as a former institutional manager (such as expensing travel and meals that should have not been submitted), I can't help but think there may have been a governmental immunity defense that could have been argued on other counts but was not (that should have been argued?):
.. (1) Rex G. was hired to fill a job the County Board of Supervisors' approved (which is a governmental act that is constitutionally permissible-- a discretionary function), which had few specific requirement's, which per his review(s) and lack of disciplinary actions, he performed adequately--did the county's immunity cloak Rex G given the nature of his job?;
.. (2) The DA at trial was allowed to argue the duties, accountabilities and time keeping duties were somehow greater than what the job description and reviews required--how? The standard of Gutierrez's job performance had to be measured on what the job was and not what the prosecution created it to be (so to build its felony prosecution strategy); did the defense bring a motion in limine to prevent the prosecution from arguing the job involved anything more than what was in the reviews and job description?
.. (3)Rex G. was convicted for doing the very job the county created so someone could do--it happened to be Rex G that was hired; that the prosecution was allowed to redefine the job to create a standard is what appears to have happened--is this any less a part of the culture of corruption in this county? The ends do not justify the means or now does it in San Bernardino County?
Chief Judge KOZINSKI, concurring:
ReplyDeleteThis case has consumed an inordinate amount of taxpayer
resources, and has no doubt devastated the defendant’s personal
and professional life. The defendant’s former employer
also paid a price, footing a multimillion dollar bill for the
defense. And, in the end, the government couldn’t prove that
the defendant engaged in any criminal conduct. This is just
UNITED STATES v. GOYAL 19761
one of a string of recent cases in which courts have found that
federal prosecutors overreached by trying to stretch criminal
law beyond its proper bounds. See Arthur Andersen LLP v.
United States, 544 U.S. 696, 705-08 (2005); United States v.
Reyes, 577 F.3d 1069, 1078 (9th Cir. 2009); United States v.
Brown, 459 F.3d 509, 523-25 (5th Cir. 2006); cf. United
States v. Moore, 612 F.3d 698, 703 (D.C. Cir. 2010) (Kavanaugh,
J., concurring) (breadth of 18 U.S.C. § 1001 creates
risk of prosecutorial abuse).
This is not the way criminal law is supposed to work. Civil
law often covers conduct that falls in a gray area of arguable
legality. But criminal law should clearly separate conduct that
is criminal from conduct that is legal. This is not only because
of the dire consequences of a conviction—including disenfranchisement,
incarceration and even deportation—but also
because criminal law represents the community’s sense of the
type of behavior that merits the moral condemnation of society.
See United States v. Bass, 404 U.S. 336, 348 (1971)
(“[C]riminal punishment usually represents the moral condemnation
of the community . . . .”); see also Wade v. United
States, 426 F.2d 64, 69 (9th Cir. 1970) (“[T]he declaration
that a person is criminally responsible for his actions is a
moral judgment of the community . . . .”). When prosecutors
have to stretch the law or the evidence to secure a conviction,
as they did here, it can hardly be said that such moral judgment
is warranted.
Mr. Goyal had the benefit of exceptionally fine advocacy
on appeal, so he is spared the punishment for a crime he
didn’t commit. But not everyone is so lucky. The government
shouldn’t have brought charges unless it had clear evidence of
wrongdoing, and the trial judge should have dismissed the
case when the prosecution rested and it was clear the evidence
could not support a conviction. Although we now vindicate
Mr. Goyal, much damage has been done. One can only hope
that he and his family will recover from the ordeal. And, perhaps,
that the government will be more cautious in the future.