The Vanguard spoke briefly yesterday with both Yolo County Supervisor Helen Thomson and Yolo County Supervisor Matt Rexroad regarding Senior Investigator to the District Attorney Rick Gore’s letter. Neither could speak about this matter as it is a personnel matter. However, I was able to confirm that there would be a thorough independent investigation into the accusations of wrongdoing leveled at District Attorney Jeff Reisig. Supervisor Rexroad would only state that they will “fully and completely investigate it.”
The news coverage of this has so far focused on charges and counter-charges. The District Attorney and his office has tossed aside these allegations and spun them onto former candidate for DA and former Deputy DA Pat Lenzi.
District Attorney Jeff Reisig in his statement to the Davis Enterprise called the allegations “false and reckless.” He also vowed to be fully cooperative.
“On March 6, 2008, the Yolo County District Attorney’s office received notice that former candidate for the office of District Attorney, Patricia Lenzi, and current District Attorney Investigator, Rick Gore, have accused several currently employed prosecutors and investigators, including the District Attorney, of committing unethical acts.
‘On behalf of the entire office, including the prosecutors and investigators targeted by these accusations, I deny these false and reckless allegations. I have requested an independent investigation, will be fully cooperative and look forward to the results.”
There has been very little talk about the substance of these allegations. Of particular note is history that suggests at least the plausibility of at least one of the charges.
Rick Gore in his letter, accused the District Attorney of attempting to “hide and conceal discoverable evidence about a material witness.”
He writes:
“One major disagreement you and I had was when you tried to hide and conceal discoverable evidence about a material witness and refused to discover evidence during an on-going murder trial.
…
Bruce Naliboff told me, in front of you, to “put a muzzle” on Randy Skaggs for talking about this discovery issue. You and I had extensive email discussion about this. Lt. Skaggs was in the office when Dave Henderson had to order you to comply with the law and therefore discover the evidence. I am sure the date of the gun test and the date of discovery of the report will show the long delay in providing this evidence, shooting and gun test, to the defense.”
While District Attorney Reisig denies these allegations as “reckless” and “false,” he has had a conviction reversed in part previously for failure to turn over exculpatory evidence.
In early 2007, the Vanguard received court documents about a 1999 case where Reisig had a verdict overturned for failure to disclose exculpatory evidence.
The following is excerpted from the January 17, 2007 Vanguard article:
In 1999, a jury found a Woodland man guilty of using a firearm in the commission of an a threat to commit great bodily harm. The man was sentenced to five years in prison but had that sentence suspended and was placed on probation under a variety of conditions including that he serve 250 days in the county jail.
However, the defendant challenged that sentence on the basis that the prosecution knowingly withheld material exculpatory evidence. Mr. Reisig’s defense was that this was inadvertent.
The basic problem was that in this case, the victim never saw a gun when the defendant threatened to shoot her and yet the prosecutors sought a firearm enhancement charge. The jury during the court proceedings twice sent notes to the court concerning the question as to whether the object was actually a firearm (a necessary conditions of this enhancement is that the object actually be a firearm).
One of the key questions that arose after the trial by the jury was whether or not a vehicle had been searched for the gun in question. This only surfaced after the trial in an inadvertent conversation between a juror and Mr Reisig. The juror asked him if the car had ever been searched and Mr. Reisig said that he believed so. The defense attorney came out about the same time and heard that the car had been searched and no gun had been found.
It turns out that the vehicle had indeed been searched and that no gun was found. This information never made it to the jury during the trial. Nor was it given to the defense.
Based on this new evidence, the defense requested a new trial on the grounds of newly discovered evidence and prosecutorial misconduct–the withholding of exculpatory evidence. The trial judge denied this motion arguing that there was no probability that the jury would have come to a different result “even if this additional information had been presented.”
This decision was appealed and the appellate court overturned the ruling and the conviction.
According to the law, the prosecution must disclose evidence favorable to the accused regardless of whether or not the defendant specially requests the evidence.
Moreover, the evidence must specifically be material to case–in the sense that its suppression potentially changes the outcome of the trial. In this case, the victim never saw a gun but only an object and at least one of the jurors questioned whether even the current evidence was sufficient to prove to prove that the defendant actually possessed a gun (a necessary condition for the enhancement).
The judge ruled that “the duty to disclose this evidence was the exclusive responsibility of the prosecution…, whose failure to do so violated defendant’s right to due process of law.”
“In sum, the prosecutor violated defendant’s right to due process by failing to disclose to the defense the existence of material exculpatory evidence pertaining to the issue of whether defendant used a firearm while threatening to shoot the victim.”
The judge ordered that the firearm enhancement was to be reversed and a new trial. The prosecution then dropped the firearm charge at the subsequent trial and the defendant was given probation.
This case also came up in a May 31, 2006 Davis Enterprise article following accusations against Pat Lenzi:
“Woodland attorney Larry Cobb described Lenzi as “up front and candid.” He said that was not his experience with Reisig several years ago, during a trial in which the defendant was accused of threatening a nightclub bouncer while holding a gun.
According to Cobb, the jury began its deliberations believing police had not searched the defendant’s car for gun. The jury convicted the defendant, and while speaking with the jury afterward, Cobb said he overheard Reisig tell jurors there was a vehicle search during which no gun was found. Cobb says he believes Reisig knew that information, potentially favorable toward his client, before the jury received the case.
The case went before the 3rd District Court of Appeal, which Cobb said ordered a new trial on the gun enhancement. The charge was never refiled.
Reisig disputes Cobb’s version of events, calling it “outrageous.” He said the jury never received information about a vehicle search, though a police officer mentioned while the jury was deliberating the case that police had searched a car and the area around it, but found no weapon.
The appellate court ruling, Reisig said, reflected the court’s opinion that the jury was entitled to hear information about the car search in case it would have affected the verdict. He added that there was no finding of intentional misconduct or hiding of evidence, and he declined to refile the gun charge because the defendant was performing well on probation.
“It wasn’t the best use of resources to proceed with a new trial for the use of the gun,” he said.”
While this prior case does not prove that Reisig acted wrongly in the incident referenced in Rick Gore’s letter, it does suggest that we need to further scrutinize these allegations because Mr. Reisig does have a history here.
Again, it is our hope that this is investigated fairly and equitably.
In the meantime, Rick Gore would seemingly be protected by California’s Whistleblower Protection Laws.
The pertinent California Labor Code Section is 1102.5 where the employer cannot make rules preventing the disclosure of information nor can they retaliate against an employee for disclosing such information.
Section 1103 of the code states, “Any employer who violates this chapter is guilty of a misdemeanor …” Furthermore, Mr. Reisig would be the responsible party here. “The employer is responsible for the acts of his managers, officers, agents, and employees” (Section 1104). Finally, Section 1106 extends the definition of employee to include among other things, county employees.
—Doug Paul Davis reporting
So does this mean that Reisig will blame Pat Lenzi for his misdeeds back then, too? Oh, wait, he blamed the COP for that one.
So does this mean that Reisig will blame Pat Lenzi for his misdeeds back then, too? Oh, wait, he blamed the COP for that one.
So does this mean that Reisig will blame Pat Lenzi for his misdeeds back then, too? Oh, wait, he blamed the COP for that one.
So does this mean that Reisig will blame Pat Lenzi for his misdeeds back then, too? Oh, wait, he blamed the COP for that one.
For those who have been personally impacted by Mr. Reisig’s antics, the allegations are neither amazing or surprising. It simply appears to be “business as usual”. In the recent past, there have been protests and complaints regarding the Yolo County DA’s office and its practices. The local media has chosen to suppress these concerns or report sparsely and/or accept explanation provided by Mr. Reisig.
For those who have been personally impacted by Mr. Reisig’s antics, the allegations are neither amazing or surprising. It simply appears to be “business as usual”. In the recent past, there have been protests and complaints regarding the Yolo County DA’s office and its practices. The local media has chosen to suppress these concerns or report sparsely and/or accept explanation provided by Mr. Reisig.
For those who have been personally impacted by Mr. Reisig’s antics, the allegations are neither amazing or surprising. It simply appears to be “business as usual”. In the recent past, there have been protests and complaints regarding the Yolo County DA’s office and its practices. The local media has chosen to suppress these concerns or report sparsely and/or accept explanation provided by Mr. Reisig.
For those who have been personally impacted by Mr. Reisig’s antics, the allegations are neither amazing or surprising. It simply appears to be “business as usual”. In the recent past, there have been protests and complaints regarding the Yolo County DA’s office and its practices. The local media has chosen to suppress these concerns or report sparsely and/or accept explanation provided by Mr. Reisig.
What I don’t understand is that if the appeals court found a “Brady violation” (withholding evidence) by Reisig, why wasn’t he sanctioned by the Bar Assn?
What I don’t understand is that if the appeals court found a “Brady violation” (withholding evidence) by Reisig, why wasn’t he sanctioned by the Bar Assn?
What I don’t understand is that if the appeals court found a “Brady violation” (withholding evidence) by Reisig, why wasn’t he sanctioned by the Bar Assn?
What I don’t understand is that if the appeals court found a “Brady violation” (withholding evidence) by Reisig, why wasn’t he sanctioned by the Bar Assn?
Yolo County cannot be allowed to conduct an investigation. There is no possibility that any “findings” made by the very entity with the most to loose (other than Mr. Reisig) will be credible. It’s a conflict of interest in the most blatant sense.
Yolo County cannot be allowed to conduct an investigation. There is no possibility that any “findings” made by the very entity with the most to loose (other than Mr. Reisig) will be credible. It’s a conflict of interest in the most blatant sense.
Yolo County cannot be allowed to conduct an investigation. There is no possibility that any “findings” made by the very entity with the most to loose (other than Mr. Reisig) will be credible. It’s a conflict of interest in the most blatant sense.
Yolo County cannot be allowed to conduct an investigation. There is no possibility that any “findings” made by the very entity with the most to loose (other than Mr. Reisig) will be credible. It’s a conflict of interest in the most blatant sense.
LOOSE or TIGHT?
“There is no possibility that any “findings” made by the very entity with the most to loose (other than Mr. Reisig) will be credible.”
What does this mean?
LOOSE or TIGHT?
“There is no possibility that any “findings” made by the very entity with the most to loose (other than Mr. Reisig) will be credible.”
What does this mean?
LOOSE or TIGHT?
“There is no possibility that any “findings” made by the very entity with the most to loose (other than Mr. Reisig) will be credible.”
What does this mean?
LOOSE or TIGHT?
“There is no possibility that any “findings” made by the very entity with the most to loose (other than Mr. Reisig) will be credible.”
What does this mean?
Who ends up paying for all the resources spent? It is the people who live in Yolo County! If there is some type of lawsuit under the whistle blower statutes, do you think Reisig will pay? No, the county will have to pay and it comes out of the pocket of the tax payers of Yolo County!
Who ends up paying for all the resources spent? It is the people who live in Yolo County! If there is some type of lawsuit under the whistle blower statutes, do you think Reisig will pay? No, the county will have to pay and it comes out of the pocket of the tax payers of Yolo County!
Who ends up paying for all the resources spent? It is the people who live in Yolo County! If there is some type of lawsuit under the whistle blower statutes, do you think Reisig will pay? No, the county will have to pay and it comes out of the pocket of the tax payers of Yolo County!
Who ends up paying for all the resources spent? It is the people who live in Yolo County! If there is some type of lawsuit under the whistle blower statutes, do you think Reisig will pay? No, the county will have to pay and it comes out of the pocket of the tax payers of Yolo County!
If there is a lawsuit, it will be paid for out of the county’s insurance. The taxpayers will not pay additional money for it.
If there is a lawsuit, it will be paid for out of the county’s insurance. The taxpayers will not pay additional money for it.
If there is a lawsuit, it will be paid for out of the county’s insurance. The taxpayers will not pay additional money for it.
If there is a lawsuit, it will be paid for out of the county’s insurance. The taxpayers will not pay additional money for it.
“Who ends up paying for all the resources spent? It is the people who live in Yolo County! If there is some type of lawsuit under the whistle blower statutes, do you think Reisig will pay? No, the county will have to pay and it comes out of the pocket of the tax payers of Yolo County!”
Are you suggesting, Anonymous, that the investigation should not be pursued because it may cost taxpayers money? So is it better to have corrupt officials in office because investigating them (Eliot Spitzer, Jeff Reisig, or anyone else who may be committing crimes while in office) costs too much to look into? Does it not “cost” us more by ignoring it?
DPD is right, insurance has already been paid to cover ay damages. Even if that does not cover the full cost of the investigation itself, the price of ignoring criminal activity by those charged with protecting us from crime is too high a price for me. I’ll gladly take higher taxes to keep my elected officials on the straight and narrow.
“Who ends up paying for all the resources spent? It is the people who live in Yolo County! If there is some type of lawsuit under the whistle blower statutes, do you think Reisig will pay? No, the county will have to pay and it comes out of the pocket of the tax payers of Yolo County!”
Are you suggesting, Anonymous, that the investigation should not be pursued because it may cost taxpayers money? So is it better to have corrupt officials in office because investigating them (Eliot Spitzer, Jeff Reisig, or anyone else who may be committing crimes while in office) costs too much to look into? Does it not “cost” us more by ignoring it?
DPD is right, insurance has already been paid to cover ay damages. Even if that does not cover the full cost of the investigation itself, the price of ignoring criminal activity by those charged with protecting us from crime is too high a price for me. I’ll gladly take higher taxes to keep my elected officials on the straight and narrow.
“Who ends up paying for all the resources spent? It is the people who live in Yolo County! If there is some type of lawsuit under the whistle blower statutes, do you think Reisig will pay? No, the county will have to pay and it comes out of the pocket of the tax payers of Yolo County!”
Are you suggesting, Anonymous, that the investigation should not be pursued because it may cost taxpayers money? So is it better to have corrupt officials in office because investigating them (Eliot Spitzer, Jeff Reisig, or anyone else who may be committing crimes while in office) costs too much to look into? Does it not “cost” us more by ignoring it?
DPD is right, insurance has already been paid to cover ay damages. Even if that does not cover the full cost of the investigation itself, the price of ignoring criminal activity by those charged with protecting us from crime is too high a price for me. I’ll gladly take higher taxes to keep my elected officials on the straight and narrow.
“Who ends up paying for all the resources spent? It is the people who live in Yolo County! If there is some type of lawsuit under the whistle blower statutes, do you think Reisig will pay? No, the county will have to pay and it comes out of the pocket of the tax payers of Yolo County!”
Are you suggesting, Anonymous, that the investigation should not be pursued because it may cost taxpayers money? So is it better to have corrupt officials in office because investigating them (Eliot Spitzer, Jeff Reisig, or anyone else who may be committing crimes while in office) costs too much to look into? Does it not “cost” us more by ignoring it?
DPD is right, insurance has already been paid to cover ay damages. Even if that does not cover the full cost of the investigation itself, the price of ignoring criminal activity by those charged with protecting us from crime is too high a price for me. I’ll gladly take higher taxes to keep my elected officials on the straight and narrow.
“What I don’t understand is that if the appeals court found a “Brady violation” (withholding evidence) by Reisig, why wasn’t he sanctioned by the Bar Assn?”
As an attorney, I will make a stab at guessing the reason behind this one. Every DA has to make a judgment call as to whether evidence is exculpatory. It is not always a bright line issue, that can be easily determined. I suspect the court gave Reisig the benefit of the doubt, and did not see purposeful manipulation, but poor judgment. DA’s have to make these sorts of decisions constantly, in almost every trial they participate in.
Nevertheless, DA’s are held to a higher standard than other attorneys. The DA is supposed to err on the side of the defendent.
“What I don’t understand is that if the appeals court found a “Brady violation” (withholding evidence) by Reisig, why wasn’t he sanctioned by the Bar Assn?”
As an attorney, I will make a stab at guessing the reason behind this one. Every DA has to make a judgment call as to whether evidence is exculpatory. It is not always a bright line issue, that can be easily determined. I suspect the court gave Reisig the benefit of the doubt, and did not see purposeful manipulation, but poor judgment. DA’s have to make these sorts of decisions constantly, in almost every trial they participate in.
Nevertheless, DA’s are held to a higher standard than other attorneys. The DA is supposed to err on the side of the defendent.
“What I don’t understand is that if the appeals court found a “Brady violation” (withholding evidence) by Reisig, why wasn’t he sanctioned by the Bar Assn?”
As an attorney, I will make a stab at guessing the reason behind this one. Every DA has to make a judgment call as to whether evidence is exculpatory. It is not always a bright line issue, that can be easily determined. I suspect the court gave Reisig the benefit of the doubt, and did not see purposeful manipulation, but poor judgment. DA’s have to make these sorts of decisions constantly, in almost every trial they participate in.
Nevertheless, DA’s are held to a higher standard than other attorneys. The DA is supposed to err on the side of the defendent.
“What I don’t understand is that if the appeals court found a “Brady violation” (withholding evidence) by Reisig, why wasn’t he sanctioned by the Bar Assn?”
As an attorney, I will make a stab at guessing the reason behind this one. Every DA has to make a judgment call as to whether evidence is exculpatory. It is not always a bright line issue, that can be easily determined. I suspect the court gave Reisig the benefit of the doubt, and did not see purposeful manipulation, but poor judgment. DA’s have to make these sorts of decisions constantly, in almost every trial they participate in.
Nevertheless, DA’s are held to a higher standard than other attorneys. The DA is supposed to err on the side of the defendent.
Why aren’t Yolo District Attorneys worried? Why does Reisig think he can brush Yolo County public corruption under the rug?
FROM THE SAN JOSE MERCURY INVESTIGATIVE REPORT, TAINTED TRIALS, STOLEN JUSTICE AT
http://www.mercurynews.com/taintedtrials/
State bar ignores errant lawyers
PROSECUTORS, DEFENSE RARELY DISCIPLINED
By Mike Zapler, Mercury News
Article Launched: 02/12/2006 05:31:54 PM PST
When California prosecutors and criminal defense attorneys engage in conduct that violates defendants’ rights, they can rest assured that they will rarely be held to account by the agency in charge of policing lawyers.
A Mercury News review of nearly 1,500 state disciplinary actions over a five-year period found that just one of them involved prosecutorial misconduct. Criminal defense attorneys drew more notice from the State Bar of California, but not much more: Only 5 percent of the actions concerned criminal defense attorneys targeted for their work on behalf of clients.
The findings come in the wake of a Mercury News investigation published last month that revealed the trial and appellate courts also rarely act to curb prosecutors or defense attorneys. Combined with the bar’s record, the paper’s reviews establish that there is no consistently effective check on courtroom behavior.
Some experts say the situation is deplorable, although they are quick to add that California’s failures are not unique.
“The bar and the judiciary that oversees prosecutors do not take actions to enforce the norms of prosecutorial conduct,” said Richard Rosen, a University of North Carolina law professor who has written about how disciplinary authorities across the country treat prosecutors.
“There are many prosecutors who do their best to follow the rules. But when they choose not to, they know they aren’t going to suffer
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serious consequences.”
Of the three Santa Clara County prosecutors described in the series whose conduct led to a wrongful conviction, there is evidence of only one even being investigated by the bar. That case, involving Deputy District Attorney Benjamin Field, is pending, 18 months after a complaint was filed.
A few of the defense attorneys identified in the series were disbarred, losing the right to practice law. Others, such as Rudy Guzzetta of San Jose, repeatedly have been cited for misrepresenting their clients, and yet they continue to practice. Guzzetta has been disciplined four separate times by the bar since 1987, admitting to multiple instances of misconduct, but the most severe penalty he has faced was a nine-month suspension imposed in 2002.
Guzzetta, however, does not believe he got off easy. “If there’s a complaint to the bar, there’s a presumption that you’re guilty,” he said. “It is a situation where you’re not going to get a break, not from the bar.”
Few complaints
Bar officials insist they take complaints against prosecutors seriously. “It’s a grave situation when a prosecutor commits misconduct,” said Donald Steedman, the bar’s supervising trial counsel.
But for a variety of reasons, said Steedman, the bar receives complaints against prosecutors far less often than other types of grievances. When complaints are lodged, bar officials must find “clear and convincing evidence” that the prosecutor’s violation was intentional to prove charges. “Our lot is sometimes a hard one,” he said.
Steedman also noted two recent cases involving prosecutors that fell just outside the time frame for the Mercury News review. In one of them, a Butte County prosecutor was suspended for one year for withholding evidence helpful to the defense — an infraction that eventually led to the dismissal of charges against the defendant. A third case involving charges of prosecutorial misconduct is pending.
The Mercury News undertook its analysis of bar discipline after learning that the agency does not track its own actions by type of attorney. The paper reviewed summaries in the California Bar Journal of the most serious categories of discipline — disbarment, probation and suspension — from 2001 to 2005. That amounted to 1,464 cases.
The review shows that civil attorneys garner by far the most attention. Time and again, discipline logs describe the workings of divorce, bankruptcy and other civil attorneys who collect money from clients and then do little or no work.
When it comes to conduct by attorneys in criminal cases, in contrast, the bar is rarely to be found. Only 75 cases were identified — one for a prosecutor and 74 for defense attorneys — in which the lawyer was disciplined for conduct in a criminal proceeding.
The sole prosecutor was B. Iver Bye, a Los Angeles County deputy district attorney at the time. In 2004, the bar suspended him for 30 days for secretly assisting a woman under investigation by his office.
Apparent inaction
In some instances, the bar does not act even when detailed charges against a prosecutor are filed. Field was rebuked for withholding evidence and defying judicial orders in a rape case in which a judge later found that the defendants, Damon Auguste and Kamani Hendricks, were wrongfully convicted.
Donna Auguste, Damon Auguste’s aunt, said she complained to bar officials about Field in August 2004, but they declined to investigate. So “I kept calling and filing additional documents,” Auguste said. Six months later, in February 2005, a bar supervisor agreed that Field should be investigated. But there is no indication since then that the bar took action against Field, although Auguste said an investigator has contacted her on occasion with questions.
Field, who insists he did nothing wrong in the Auguste case, said he has responded fully to the bar’s inquiries.
Bar officials say they are most likely to pursue discipline charges against a prosecutor when a court makes a finding of misconduct — and when the misconduct causes the case to be reversed or dismissed.
But in the case of Los Angeles prosecutor Rosalie Morton — cited in textbooks and court filings as the epitome of prosecutorial misconduct in California — the bar still took no action.
In 1998, the California Supreme Court found Morton’s actions in a trial so egregious — she engaged in a “mountain of deceit and unethical behavior” — that it took the extremely rare step of overturning a murder conviction. The court then reported Morton to the state bar for discipline, noting that it was one of a succession of cases in which Morton had been cited by courts for misconduct.
Morton has never been publicly disciplined; she has left the Los Angeles County District Attorney’s Office but remains an active member of the bar.
Steedman declined to comment, saying the bar discusses only cases that result in formal charges. But he noted that the bar at the time was in the midst of a severe budget crunch caused by a dispute with then-Gov. Pete Wilson. Most employees were laid off, and when the bar resumed functioning, “We had to prosecute cases we believed would protect the public most from future misconduct.”
Legal experts say there are many reasons why bar organizations rarely pursue prosecutors. One is resources: Cases against prosecutors are hard to prove and likely to be contested, so it is easier for the bar to pursue allegations that involve money, which are more clear-cut.
“It’s largely a passive operation that reacts to complaints and chooses to prosecute what it considers the worst violations,” said Fred Zacharias, a University of San Diego law professor, who said he doesn’t believe that disciplining prosecutors more often would do much to deter misconduct.
Let courts do it
Other experts say bar officials prefer to let the courts handle misconduct allegations, or that they are uncomfortable, except in the worst cases, challenging attorneys who are trying to put criminals behind bars. And even though judges are required by professional code to report serious findings of prosecutorial or defense misconduct, bar officials say they don’t believe that always happens.
California does not appear to stand out in its rate of attorney discipline. A recent American Bar Association survey of lawyer discipline agencies suggests that the frequency with which California sanctions attorneys ranked in the middle of states that responded. California’s rate of disbarring attorneys was lower than the median, but it suspends lawyers and puts them on probation more frequently than many states.
The survey also indicated that California has one of the best-funded bar organizations in the nation, on a per attorney basis.
Chief Assistant District Attorney Karyn Sinunu, who is running for district attorney, said it is troubling that the California bar so rarely sanctions criminal defense attorneys or prosecutors.
“I think they’re very focused on civil litigation and attorneys who take money from clients,” Sinunu said. “Few and far between are there cases of criminal defense attorneys or prosecutors getting slapped on the hand for anything.”
“I think the state bar should be more active” in that realm, Sinunu said.
Data analyst Griff Palmer contributed to this article. Contact Mike Zapler at (408) 920-5505 or mzapler@mercurynews.com.
Why aren’t Yolo District Attorneys worried? Why does Reisig think he can brush Yolo County public corruption under the rug?
FROM THE SAN JOSE MERCURY INVESTIGATIVE REPORT, TAINTED TRIALS, STOLEN JUSTICE AT
http://www.mercurynews.com/taintedtrials/
State bar ignores errant lawyers
PROSECUTORS, DEFENSE RARELY DISCIPLINED
By Mike Zapler, Mercury News
Article Launched: 02/12/2006 05:31:54 PM PST
When California prosecutors and criminal defense attorneys engage in conduct that violates defendants’ rights, they can rest assured that they will rarely be held to account by the agency in charge of policing lawyers.
A Mercury News review of nearly 1,500 state disciplinary actions over a five-year period found that just one of them involved prosecutorial misconduct. Criminal defense attorneys drew more notice from the State Bar of California, but not much more: Only 5 percent of the actions concerned criminal defense attorneys targeted for their work on behalf of clients.
The findings come in the wake of a Mercury News investigation published last month that revealed the trial and appellate courts also rarely act to curb prosecutors or defense attorneys. Combined with the bar’s record, the paper’s reviews establish that there is no consistently effective check on courtroom behavior.
Some experts say the situation is deplorable, although they are quick to add that California’s failures are not unique.
“The bar and the judiciary that oversees prosecutors do not take actions to enforce the norms of prosecutorial conduct,” said Richard Rosen, a University of North Carolina law professor who has written about how disciplinary authorities across the country treat prosecutors.
“There are many prosecutors who do their best to follow the rules. But when they choose not to, they know they aren’t going to suffer
Advertisement
serious consequences.”
Of the three Santa Clara County prosecutors described in the series whose conduct led to a wrongful conviction, there is evidence of only one even being investigated by the bar. That case, involving Deputy District Attorney Benjamin Field, is pending, 18 months after a complaint was filed.
A few of the defense attorneys identified in the series were disbarred, losing the right to practice law. Others, such as Rudy Guzzetta of San Jose, repeatedly have been cited for misrepresenting their clients, and yet they continue to practice. Guzzetta has been disciplined four separate times by the bar since 1987, admitting to multiple instances of misconduct, but the most severe penalty he has faced was a nine-month suspension imposed in 2002.
Guzzetta, however, does not believe he got off easy. “If there’s a complaint to the bar, there’s a presumption that you’re guilty,” he said. “It is a situation where you’re not going to get a break, not from the bar.”
Few complaints
Bar officials insist they take complaints against prosecutors seriously. “It’s a grave situation when a prosecutor commits misconduct,” said Donald Steedman, the bar’s supervising trial counsel.
But for a variety of reasons, said Steedman, the bar receives complaints against prosecutors far less often than other types of grievances. When complaints are lodged, bar officials must find “clear and convincing evidence” that the prosecutor’s violation was intentional to prove charges. “Our lot is sometimes a hard one,” he said.
Steedman also noted two recent cases involving prosecutors that fell just outside the time frame for the Mercury News review. In one of them, a Butte County prosecutor was suspended for one year for withholding evidence helpful to the defense — an infraction that eventually led to the dismissal of charges against the defendant. A third case involving charges of prosecutorial misconduct is pending.
The Mercury News undertook its analysis of bar discipline after learning that the agency does not track its own actions by type of attorney. The paper reviewed summaries in the California Bar Journal of the most serious categories of discipline — disbarment, probation and suspension — from 2001 to 2005. That amounted to 1,464 cases.
The review shows that civil attorneys garner by far the most attention. Time and again, discipline logs describe the workings of divorce, bankruptcy and other civil attorneys who collect money from clients and then do little or no work.
When it comes to conduct by attorneys in criminal cases, in contrast, the bar is rarely to be found. Only 75 cases were identified — one for a prosecutor and 74 for defense attorneys — in which the lawyer was disciplined for conduct in a criminal proceeding.
The sole prosecutor was B. Iver Bye, a Los Angeles County deputy district attorney at the time. In 2004, the bar suspended him for 30 days for secretly assisting a woman under investigation by his office.
Apparent inaction
In some instances, the bar does not act even when detailed charges against a prosecutor are filed. Field was rebuked for withholding evidence and defying judicial orders in a rape case in which a judge later found that the defendants, Damon Auguste and Kamani Hendricks, were wrongfully convicted.
Donna Auguste, Damon Auguste’s aunt, said she complained to bar officials about Field in August 2004, but they declined to investigate. So “I kept calling and filing additional documents,” Auguste said. Six months later, in February 2005, a bar supervisor agreed that Field should be investigated. But there is no indication since then that the bar took action against Field, although Auguste said an investigator has contacted her on occasion with questions.
Field, who insists he did nothing wrong in the Auguste case, said he has responded fully to the bar’s inquiries.
Bar officials say they are most likely to pursue discipline charges against a prosecutor when a court makes a finding of misconduct — and when the misconduct causes the case to be reversed or dismissed.
But in the case of Los Angeles prosecutor Rosalie Morton — cited in textbooks and court filings as the epitome of prosecutorial misconduct in California — the bar still took no action.
In 1998, the California Supreme Court found Morton’s actions in a trial so egregious — she engaged in a “mountain of deceit and unethical behavior” — that it took the extremely rare step of overturning a murder conviction. The court then reported Morton to the state bar for discipline, noting that it was one of a succession of cases in which Morton had been cited by courts for misconduct.
Morton has never been publicly disciplined; she has left the Los Angeles County District Attorney’s Office but remains an active member of the bar.
Steedman declined to comment, saying the bar discusses only cases that result in formal charges. But he noted that the bar at the time was in the midst of a severe budget crunch caused by a dispute with then-Gov. Pete Wilson. Most employees were laid off, and when the bar resumed functioning, “We had to prosecute cases we believed would protect the public most from future misconduct.”
Legal experts say there are many reasons why bar organizations rarely pursue prosecutors. One is resources: Cases against prosecutors are hard to prove and likely to be contested, so it is easier for the bar to pursue allegations that involve money, which are more clear-cut.
“It’s largely a passive operation that reacts to complaints and chooses to prosecute what it considers the worst violations,” said Fred Zacharias, a University of San Diego law professor, who said he doesn’t believe that disciplining prosecutors more often would do much to deter misconduct.
Let courts do it
Other experts say bar officials prefer to let the courts handle misconduct allegations, or that they are uncomfortable, except in the worst cases, challenging attorneys who are trying to put criminals behind bars. And even though judges are required by professional code to report serious findings of prosecutorial or defense misconduct, bar officials say they don’t believe that always happens.
California does not appear to stand out in its rate of attorney discipline. A recent American Bar Association survey of lawyer discipline agencies suggests that the frequency with which California sanctions attorneys ranked in the middle of states that responded. California’s rate of disbarring attorneys was lower than the median, but it suspends lawyers and puts them on probation more frequently than many states.
The survey also indicated that California has one of the best-funded bar organizations in the nation, on a per attorney basis.
Chief Assistant District Attorney Karyn Sinunu, who is running for district attorney, said it is troubling that the California bar so rarely sanctions criminal defense attorneys or prosecutors.
“I think they’re very focused on civil litigation and attorneys who take money from clients,” Sinunu said. “Few and far between are there cases of criminal defense attorneys or prosecutors getting slapped on the hand for anything.”
“I think the state bar should be more active” in that realm, Sinunu said.
Data analyst Griff Palmer contributed to this article. Contact Mike Zapler at (408) 920-5505 or mzapler@mercurynews.com.
Why aren’t Yolo District Attorneys worried? Why does Reisig think he can brush Yolo County public corruption under the rug?
FROM THE SAN JOSE MERCURY INVESTIGATIVE REPORT, TAINTED TRIALS, STOLEN JUSTICE AT
http://www.mercurynews.com/taintedtrials/
State bar ignores errant lawyers
PROSECUTORS, DEFENSE RARELY DISCIPLINED
By Mike Zapler, Mercury News
Article Launched: 02/12/2006 05:31:54 PM PST
When California prosecutors and criminal defense attorneys engage in conduct that violates defendants’ rights, they can rest assured that they will rarely be held to account by the agency in charge of policing lawyers.
A Mercury News review of nearly 1,500 state disciplinary actions over a five-year period found that just one of them involved prosecutorial misconduct. Criminal defense attorneys drew more notice from the State Bar of California, but not much more: Only 5 percent of the actions concerned criminal defense attorneys targeted for their work on behalf of clients.
The findings come in the wake of a Mercury News investigation published last month that revealed the trial and appellate courts also rarely act to curb prosecutors or defense attorneys. Combined with the bar’s record, the paper’s reviews establish that there is no consistently effective check on courtroom behavior.
Some experts say the situation is deplorable, although they are quick to add that California’s failures are not unique.
“The bar and the judiciary that oversees prosecutors do not take actions to enforce the norms of prosecutorial conduct,” said Richard Rosen, a University of North Carolina law professor who has written about how disciplinary authorities across the country treat prosecutors.
“There are many prosecutors who do their best to follow the rules. But when they choose not to, they know they aren’t going to suffer
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serious consequences.”
Of the three Santa Clara County prosecutors described in the series whose conduct led to a wrongful conviction, there is evidence of only one even being investigated by the bar. That case, involving Deputy District Attorney Benjamin Field, is pending, 18 months after a complaint was filed.
A few of the defense attorneys identified in the series were disbarred, losing the right to practice law. Others, such as Rudy Guzzetta of San Jose, repeatedly have been cited for misrepresenting their clients, and yet they continue to practice. Guzzetta has been disciplined four separate times by the bar since 1987, admitting to multiple instances of misconduct, but the most severe penalty he has faced was a nine-month suspension imposed in 2002.
Guzzetta, however, does not believe he got off easy. “If there’s a complaint to the bar, there’s a presumption that you’re guilty,” he said. “It is a situation where you’re not going to get a break, not from the bar.”
Few complaints
Bar officials insist they take complaints against prosecutors seriously. “It’s a grave situation when a prosecutor commits misconduct,” said Donald Steedman, the bar’s supervising trial counsel.
But for a variety of reasons, said Steedman, the bar receives complaints against prosecutors far less often than other types of grievances. When complaints are lodged, bar officials must find “clear and convincing evidence” that the prosecutor’s violation was intentional to prove charges. “Our lot is sometimes a hard one,” he said.
Steedman also noted two recent cases involving prosecutors that fell just outside the time frame for the Mercury News review. In one of them, a Butte County prosecutor was suspended for one year for withholding evidence helpful to the defense — an infraction that eventually led to the dismissal of charges against the defendant. A third case involving charges of prosecutorial misconduct is pending.
The Mercury News undertook its analysis of bar discipline after learning that the agency does not track its own actions by type of attorney. The paper reviewed summaries in the California Bar Journal of the most serious categories of discipline — disbarment, probation and suspension — from 2001 to 2005. That amounted to 1,464 cases.
The review shows that civil attorneys garner by far the most attention. Time and again, discipline logs describe the workings of divorce, bankruptcy and other civil attorneys who collect money from clients and then do little or no work.
When it comes to conduct by attorneys in criminal cases, in contrast, the bar is rarely to be found. Only 75 cases were identified — one for a prosecutor and 74 for defense attorneys — in which the lawyer was disciplined for conduct in a criminal proceeding.
The sole prosecutor was B. Iver Bye, a Los Angeles County deputy district attorney at the time. In 2004, the bar suspended him for 30 days for secretly assisting a woman under investigation by his office.
Apparent inaction
In some instances, the bar does not act even when detailed charges against a prosecutor are filed. Field was rebuked for withholding evidence and defying judicial orders in a rape case in which a judge later found that the defendants, Damon Auguste and Kamani Hendricks, were wrongfully convicted.
Donna Auguste, Damon Auguste’s aunt, said she complained to bar officials about Field in August 2004, but they declined to investigate. So “I kept calling and filing additional documents,” Auguste said. Six months later, in February 2005, a bar supervisor agreed that Field should be investigated. But there is no indication since then that the bar took action against Field, although Auguste said an investigator has contacted her on occasion with questions.
Field, who insists he did nothing wrong in the Auguste case, said he has responded fully to the bar’s inquiries.
Bar officials say they are most likely to pursue discipline charges against a prosecutor when a court makes a finding of misconduct — and when the misconduct causes the case to be reversed or dismissed.
But in the case of Los Angeles prosecutor Rosalie Morton — cited in textbooks and court filings as the epitome of prosecutorial misconduct in California — the bar still took no action.
In 1998, the California Supreme Court found Morton’s actions in a trial so egregious — she engaged in a “mountain of deceit and unethical behavior” — that it took the extremely rare step of overturning a murder conviction. The court then reported Morton to the state bar for discipline, noting that it was one of a succession of cases in which Morton had been cited by courts for misconduct.
Morton has never been publicly disciplined; she has left the Los Angeles County District Attorney’s Office but remains an active member of the bar.
Steedman declined to comment, saying the bar discusses only cases that result in formal charges. But he noted that the bar at the time was in the midst of a severe budget crunch caused by a dispute with then-Gov. Pete Wilson. Most employees were laid off, and when the bar resumed functioning, “We had to prosecute cases we believed would protect the public most from future misconduct.”
Legal experts say there are many reasons why bar organizations rarely pursue prosecutors. One is resources: Cases against prosecutors are hard to prove and likely to be contested, so it is easier for the bar to pursue allegations that involve money, which are more clear-cut.
“It’s largely a passive operation that reacts to complaints and chooses to prosecute what it considers the worst violations,” said Fred Zacharias, a University of San Diego law professor, who said he doesn’t believe that disciplining prosecutors more often would do much to deter misconduct.
Let courts do it
Other experts say bar officials prefer to let the courts handle misconduct allegations, or that they are uncomfortable, except in the worst cases, challenging attorneys who are trying to put criminals behind bars. And even though judges are required by professional code to report serious findings of prosecutorial or defense misconduct, bar officials say they don’t believe that always happens.
California does not appear to stand out in its rate of attorney discipline. A recent American Bar Association survey of lawyer discipline agencies suggests that the frequency with which California sanctions attorneys ranked in the middle of states that responded. California’s rate of disbarring attorneys was lower than the median, but it suspends lawyers and puts them on probation more frequently than many states.
The survey also indicated that California has one of the best-funded bar organizations in the nation, on a per attorney basis.
Chief Assistant District Attorney Karyn Sinunu, who is running for district attorney, said it is troubling that the California bar so rarely sanctions criminal defense attorneys or prosecutors.
“I think they’re very focused on civil litigation and attorneys who take money from clients,” Sinunu said. “Few and far between are there cases of criminal defense attorneys or prosecutors getting slapped on the hand for anything.”
“I think the state bar should be more active” in that realm, Sinunu said.
Data analyst Griff Palmer contributed to this article. Contact Mike Zapler at (408) 920-5505 or mzapler@mercurynews.com.
Why aren’t Yolo District Attorneys worried? Why does Reisig think he can brush Yolo County public corruption under the rug?
FROM THE SAN JOSE MERCURY INVESTIGATIVE REPORT, TAINTED TRIALS, STOLEN JUSTICE AT
http://www.mercurynews.com/taintedtrials/
State bar ignores errant lawyers
PROSECUTORS, DEFENSE RARELY DISCIPLINED
By Mike Zapler, Mercury News
Article Launched: 02/12/2006 05:31:54 PM PST
When California prosecutors and criminal defense attorneys engage in conduct that violates defendants’ rights, they can rest assured that they will rarely be held to account by the agency in charge of policing lawyers.
A Mercury News review of nearly 1,500 state disciplinary actions over a five-year period found that just one of them involved prosecutorial misconduct. Criminal defense attorneys drew more notice from the State Bar of California, but not much more: Only 5 percent of the actions concerned criminal defense attorneys targeted for their work on behalf of clients.
The findings come in the wake of a Mercury News investigation published last month that revealed the trial and appellate courts also rarely act to curb prosecutors or defense attorneys. Combined with the bar’s record, the paper’s reviews establish that there is no consistently effective check on courtroom behavior.
Some experts say the situation is deplorable, although they are quick to add that California’s failures are not unique.
“The bar and the judiciary that oversees prosecutors do not take actions to enforce the norms of prosecutorial conduct,” said Richard Rosen, a University of North Carolina law professor who has written about how disciplinary authorities across the country treat prosecutors.
“There are many prosecutors who do their best to follow the rules. But when they choose not to, they know they aren’t going to suffer
Advertisement
serious consequences.”
Of the three Santa Clara County prosecutors described in the series whose conduct led to a wrongful conviction, there is evidence of only one even being investigated by the bar. That case, involving Deputy District Attorney Benjamin Field, is pending, 18 months after a complaint was filed.
A few of the defense attorneys identified in the series were disbarred, losing the right to practice law. Others, such as Rudy Guzzetta of San Jose, repeatedly have been cited for misrepresenting their clients, and yet they continue to practice. Guzzetta has been disciplined four separate times by the bar since 1987, admitting to multiple instances of misconduct, but the most severe penalty he has faced was a nine-month suspension imposed in 2002.
Guzzetta, however, does not believe he got off easy. “If there’s a complaint to the bar, there’s a presumption that you’re guilty,” he said. “It is a situation where you’re not going to get a break, not from the bar.”
Few complaints
Bar officials insist they take complaints against prosecutors seriously. “It’s a grave situation when a prosecutor commits misconduct,” said Donald Steedman, the bar’s supervising trial counsel.
But for a variety of reasons, said Steedman, the bar receives complaints against prosecutors far less often than other types of grievances. When complaints are lodged, bar officials must find “clear and convincing evidence” that the prosecutor’s violation was intentional to prove charges. “Our lot is sometimes a hard one,” he said.
Steedman also noted two recent cases involving prosecutors that fell just outside the time frame for the Mercury News review. In one of them, a Butte County prosecutor was suspended for one year for withholding evidence helpful to the defense — an infraction that eventually led to the dismissal of charges against the defendant. A third case involving charges of prosecutorial misconduct is pending.
The Mercury News undertook its analysis of bar discipline after learning that the agency does not track its own actions by type of attorney. The paper reviewed summaries in the California Bar Journal of the most serious categories of discipline — disbarment, probation and suspension — from 2001 to 2005. That amounted to 1,464 cases.
The review shows that civil attorneys garner by far the most attention. Time and again, discipline logs describe the workings of divorce, bankruptcy and other civil attorneys who collect money from clients and then do little or no work.
When it comes to conduct by attorneys in criminal cases, in contrast, the bar is rarely to be found. Only 75 cases were identified — one for a prosecutor and 74 for defense attorneys — in which the lawyer was disciplined for conduct in a criminal proceeding.
The sole prosecutor was B. Iver Bye, a Los Angeles County deputy district attorney at the time. In 2004, the bar suspended him for 30 days for secretly assisting a woman under investigation by his office.
Apparent inaction
In some instances, the bar does not act even when detailed charges against a prosecutor are filed. Field was rebuked for withholding evidence and defying judicial orders in a rape case in which a judge later found that the defendants, Damon Auguste and Kamani Hendricks, were wrongfully convicted.
Donna Auguste, Damon Auguste’s aunt, said she complained to bar officials about Field in August 2004, but they declined to investigate. So “I kept calling and filing additional documents,” Auguste said. Six months later, in February 2005, a bar supervisor agreed that Field should be investigated. But there is no indication since then that the bar took action against Field, although Auguste said an investigator has contacted her on occasion with questions.
Field, who insists he did nothing wrong in the Auguste case, said he has responded fully to the bar’s inquiries.
Bar officials say they are most likely to pursue discipline charges against a prosecutor when a court makes a finding of misconduct — and when the misconduct causes the case to be reversed or dismissed.
But in the case of Los Angeles prosecutor Rosalie Morton — cited in textbooks and court filings as the epitome of prosecutorial misconduct in California — the bar still took no action.
In 1998, the California Supreme Court found Morton’s actions in a trial so egregious — she engaged in a “mountain of deceit and unethical behavior” — that it took the extremely rare step of overturning a murder conviction. The court then reported Morton to the state bar for discipline, noting that it was one of a succession of cases in which Morton had been cited by courts for misconduct.
Morton has never been publicly disciplined; she has left the Los Angeles County District Attorney’s Office but remains an active member of the bar.
Steedman declined to comment, saying the bar discusses only cases that result in formal charges. But he noted that the bar at the time was in the midst of a severe budget crunch caused by a dispute with then-Gov. Pete Wilson. Most employees were laid off, and when the bar resumed functioning, “We had to prosecute cases we believed would protect the public most from future misconduct.”
Legal experts say there are many reasons why bar organizations rarely pursue prosecutors. One is resources: Cases against prosecutors are hard to prove and likely to be contested, so it is easier for the bar to pursue allegations that involve money, which are more clear-cut.
“It’s largely a passive operation that reacts to complaints and chooses to prosecute what it considers the worst violations,” said Fred Zacharias, a University of San Diego law professor, who said he doesn’t believe that disciplining prosecutors more often would do much to deter misconduct.
Let courts do it
Other experts say bar officials prefer to let the courts handle misconduct allegations, or that they are uncomfortable, except in the worst cases, challenging attorneys who are trying to put criminals behind bars. And even though judges are required by professional code to report serious findings of prosecutorial or defense misconduct, bar officials say they don’t believe that always happens.
California does not appear to stand out in its rate of attorney discipline. A recent American Bar Association survey of lawyer discipline agencies suggests that the frequency with which California sanctions attorneys ranked in the middle of states that responded. California’s rate of disbarring attorneys was lower than the median, but it suspends lawyers and puts them on probation more frequently than many states.
The survey also indicated that California has one of the best-funded bar organizations in the nation, on a per attorney basis.
Chief Assistant District Attorney Karyn Sinunu, who is running for district attorney, said it is troubling that the California bar so rarely sanctions criminal defense attorneys or prosecutors.
“I think they’re very focused on civil litigation and attorneys who take money from clients,” Sinunu said. “Few and far between are there cases of criminal defense attorneys or prosecutors getting slapped on the hand for anything.”
“I think the state bar should be more active” in that realm, Sinunu said.
Data analyst Griff Palmer contributed to this article. Contact Mike Zapler at (408) 920-5505 or mzapler@mercurynews.com.