Walter Mencken 12:34 p.m., July 24
Psychiatrist's Talk of Rap Sheet Voids Pot Conviction
A psychiatrist's testimony about an alleged pot smuggler's "rap sheet" has resulted in reversal by the U.S. Ninth District Court of Appeals of defendant Brad Ray Santini's San Diego federal district court conviction for attempting to cross the border at Calexico in September 2008 with 28 kilograms of marijuana stashed in the rear seat and spare tire of his Jeep Cherokee.
"Santini's defense at trial was that someone else had placed the marijuana in his car without his knowledge," according to the ruling by the appellate court's three judge panel.
"The defense claimed that Santini may have been tricked, arguing that he was easy to manipulate due to a traumatic brain injury he had suffered in 2005.
"Dr. Dean Delis, a clinical psychologist, testified that Santini had suffered 'a severe traumatic brain injury' and that tests showed Santini 'has permanent cognitive deficits' as a result. Dr. Delis explained that Santini's type of injury can cause difficulty with 'social perception of other people.'
"The government sought to rebut this testimony by presenting its own expert, psychiatrist Dr. Mark Kalish.
"Dr. Kalish testified that his evaluation did not show that Santini's brain injury made him more vulnerable to manipulation. Dr. Kalish based this opinion in part on Santini's 'rap sheet.'
"Dr. Kalish explained that the rap sheet showed 'extensive prior contacts with law enforcement' before the 2005 accident and that if the charges against Santini were related to his injury, one would not expect to see 'similar behavior' before the accident."
Santini's attorneys argued Kalish's testimony was unfairly prejudicial to the defense.
"Dr. Kalish admitted on cross-examination that he found the rap sheet hard to understand, and his report relaying the information contained in the rap sheet did not distinguish among arrests, convictions, or other 'contacts' with law enforcement," according to the ruling.
"The rap sheet itself was not admitted into the record or examined by the district court. The defense also argued that this particular rap sheet was unreliable because it listed multiple allegations arising from the same incident as separate contacts."
As a result, "We conclude that it was an abuse of discretion to allow the government to introduce evidence of Santini's prior 'law enforcement contacts.'
"Because this error was not harmless, we VACATE Santini's conviction and REMAND to the district court for a new trial."
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