Psychiatrist's Talk of Rap Sheet Voids Pot Conviction

Psychiatrist's Talk of Rap Sheet Voids Pot Conviction
Matt Potter
September 14, 2011

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."



COMMENTS

SurfPuppy619 Sept. 14, 2011 @ 5:22 p.m.

"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. "

How on earth could there be an ASUA in this country that is this stoopid????? Allowing a hired gun to make reference to ANY alleged criminal act without going over it specifically with the prosecuting attorney BEFORE trial is Crim law 101. Heck, you cannot EVEN MENTION a MURDER!!! conviction if it is over 10 years old-and this hired gun is bring up "contacts" and "arrests"???? Please.

The AUSA should be fired for incompetence.



MARK KALISH WORKED THIS CASE ALSO:

$4 million verdict for wrongful death on dangerous roadway.
San Diego County
Judge: Hon. Earl H. Maas, III
Date of Jury Verdict: March 29, 2012
Date Action was Filed: 29 September 2010
Case Name: Keith Schultz, Tobie Deala v. County of San Diego.

Active-duty marine, age 22, loses control on wet roadway and hits telephone pole. Ongoing problem of flooding on road as well as decedent's driving and state of mind (attentiveness) while driving are examined in trial against county.

Trial Time: 9 days
Jury Deliberation Time: 2 days

Gross Verdict: $4,000,000 ($2,000,000 to each plaintiff)

Settlements:
San Luis Rey Downs Enterprise LLC (golf course) - Settlement: $200,000 prior to trial
San Diego Gas & Electric Company (owner of the utility pole which decedent struck) - Settlement: $100,000 prior to trial

Attorney(s) for Plaintiff:
Booth & Koskoff by Roger E. Booth, Torrance

Attorney(s) for Defendant:
Office of County Counsel by George W. Brewster, Jr., San Diego

Defendant's Medical Experts: Mark A. Kalish, M.D., psychiatry, San Diego

Plaintiff's Technical Experts:
Charles Dickerson, accident reconstruction, Mesa, AZ
Richard F. Ryan, highway design, Vancouver, WA

Defendant's Technical Experts:
Glenn Follen, tire performance, Austin TX
Arnold A. Johnson, traffic engineering, Fair Oaks
Jene Lyle, hydrology, Irvine
Arnold W. Siegel, accident reconstruction, Encino

Date and place of incident: April 22, 2010/Camino del Rey in Bonsall, San Diego County.

Facts: When driving home from work at Camp Pendleton, 22 year-old Marine Corporal Samantha Schultz collided into a utility pole on Camino del Rey in Bonsall. She died the next day as a result of her injuries...

Plaintiff's Contentions:

That the crash which caused the death of plaintiffs' daughter was due to a dangerous condition of public property, namely flooding on Camino del Rey, a road owned and maintained by Defendant County of San Diego.

The county and the owner of an adjacent golf course (Defendant San Luis Rey Downs) had been in discussions for over four years about this flooding issue and how to solve it. As there was a history of at least 15-20 hydroplaning crashes at or near the location, plaintiffs contended that the county had notice of the foreseeable risk and hazard and should have remedied the situation...

Accident reconstructionist testified that decedent was traveling between 55 and 65 mph, accelerated into the curve and may have made a panic turn when she saw a large truck coming toward her in the curve.

Defense psychiatrist [Mark Kalish] testified that text messages sent by the decedent on the day of the crash, describing her emotional turmoil over a breakup with her boyfriend and mentioning a medical procedure for cervical cancer that she underwent earlier on the day of the crash, substantiated she was distracted emotionally and was inattentive in her driving. Further, that she had been seen for mental health on the day of the accident and went to the pharmacy to pick up medications.

Plaintiff §998 Demand: $1,300,000 ($650,000 to each plaintiff)
Defendant §998 Offer: $100,000 ($50,000 to each plaintiff)

The Rest of the Story

According to plaintiffs' counsel, although the defense expert psychiatrist centered much testimony on the likely distracted mental state of the decedent and the resultant inattentiveness in driving, her commanding officer testified that decedent never let her personal life affect her ability to do her difficult job as a Marine.



Dr. Mark A. Kalish, MD

Forensic Psychiatry, Board Certified
Male, Age 60
Graduated 1977, Northwestern University The Feinberg School Of Medicine

Kalish Wilson and Carroll Mds
3131 Camino del Rio N Suite 270
San Diego, CA 92108