We learned this week that the State Bar Court Review Department had reserved a ruling from a State Bar Court Hearing Department judge who found that former Yolo County Deputy DA Clinton Parish violated judicial canon by attacking his 2012 opponent, a sitting Yolo County Superior Court judge, with reckless disregard for the truth.
However, the judge recommended an admonition, which is not considered discipline. The new ruling orders Mr. Parish to be “publicly reproved” until he successful completes the State Bar’s Ethics School.
The charges stem from a mailer sent in May, 2012, that the Vanguard reported on, in which Clinton Parish, then a Deputy District Attorney in Yolo County, accused Dan Maguire, a sitting Superior Court Judge in Yolo County, of a host of allegations including one in which he charged “that his opponent, while in private practice, was involved ‘in a sordid case of corporate fraud that involved payment of bribes in Russia …’”
I am no fan of Clinton Parish. From his attacks on 2006 District Attorney Candidate Pat Lenzi to his courtroom antics, I believed from the start that he was ill-fit to be a judge. The Vanguard was the first publication to report on Mr. Parish’s attacks on Judge Maguire and to refute their accuracy.
While both parties appealed the hearing judge’s decision, my view is that this is over-the-top and egregious. To what public purpose does continuing this matter serve the public?
Mr. Parish has paid an extremely steep price for his failure to properly scrutinize the attack piece that his campaign developed. As a result, Mr. Parish lost the support of key supporters like his former boss Jeff Reisig and Sheriff Ed Prieto.
Mr. Parish overwhelming lost the election that he essentially conceded by suspending his campaign activities a month out. Mr. Parish would take a leave of absence and ultimately leave the Yolo County DA’s office for a similar position in Amador, only to be denied permanent employment following a probationary period.
So Mr. Parish, a young man barely in his forties, has been forced out of his position and into private practice in Amador. That is a steep price to pay. No amount of classes or public reproval is going to top what he has already suffered.
The problem is that the bar is going after Clinton Parish with a huge amount of force and resources. His crime was to falsely accuse his opponent of malfeasance in a competitive public election. We do not condone his behavior, but we find it interesting that the bar would go after that conduct so heavily, but essentially turn a blind eye to much more egregious breaches of public trust.
In 2010, the Northern California Innocence Project released its first annual report, “Preventable Error.” The report documented more than 800 instances of prosecutorial misconduct, including 107 where the prosecutors were found to have committed misconduct more than once – two were cited for misconduct four times, two were cited five times and one prosecutor was cited for misconduct six times.
Of all of these cases, only six prosecutors were disciplined by either the state bar or their immediate supervisors.
The report calls the state bar to task. They write, “By casting a blind eye to prosecutors who place their thumbs on the scale of justice, judges, prosecutors and the California State Bar are failing to live up to their responsibilities, fostering misconduct and opening the door to the inevitable – the conviction of the innocent and the release of the guilty.”
“It is time to acknowledge the problem and take needed action,” they write.
Last fall, the Vanguard focused on the issue of prosecutorial misconduct and brought in Scott Sanders from Orange County. He is involved in a death penalty case where prosecutors have committed numerous acts of impropriety.
The judge found ample evidence that there were improprieties in the handling of the matter, and he ultimately ruled that the prosecutors in the Orange County case were negligent, not willful, in their misconduct.
In July, a three-justice panel of the California Court of Appeal in a ruling noted that jail deputies at the Orange County Sheriff’s Department “engaged in abhorrent conduct and were derelict in their duties.” While they noted the “extreme nature” of this conduct and argued that it did not just “violate the public trust and the spirit of what we expect from those entrusted to enforce the law,” they found it unmatched in recorded state history.
The Orange County Sheriff’s Deputy was found to have destroyed evidence, committed perjury, doctored logs, fired weapons at inmates sitting on toilets, ignored medical emergencies, along with many other violation. Despite this, that judge panel in a ruling on July 7 argued that this failed to amount to outrageous government conduct and therefore they refused to dismiss murder convictions for “inmates who participated in beating Chamberlain to death and who claim deputies encouraged the crime by falsely branding the victim a child molester,” the Orange County Weekly reported.
And here we are now, Mr. Sanders is still fighting this and other cases in Orange County, and where is the state bar?
Two weeks ago, the LA Times ran a story on a hearing in front of the 9th Circuit Court of Appeals. As the Times reports, a deputy attorney general was arguing to uphold murder convictions against Johnny Baca for two 1995 killings in Riverside County.
The Times reports, “Judge Alex Kozinski asked Vienna if his boss, Atty. Gen. Kamala D. Harris, wanted to defend a conviction ‘obtained by lying prosecutors.’ If Harris did not back off the case, Kozinski warned, the court would ‘name names’ in a ruling that would not be ‘very pretty.’”
The three judges in this case “expressed frustration and anger that California state judges were not cracking down on prosecutorial misconduct.”
Judge Kozinski said, “(Prosecutors) got caught this time but they are going to keep doing it because they have state judges who are willing to look the other way.”
The LA Times spoke with Santa Clara University law professor Gerald Uelmen who said that clearly the judges’ question and tone shows that they have lost patience with California courts. “State judges are supposed to refer errant lawyers, including prosecutors, to the state bar for discipline, but they rarely do.”
“It is a cumulative type thing,” Professor Uelmen told the Times. “The 9th Circuit keeps seeing this misconduct over and over again. This is one way they can really call attention to it.”
The Baca case is remarkably similar to the Orange County case. In this case a jailhouse informant in Riverside County testified against Mr. Baca. Mr. Baca would be found guilty twice with the state appellate court overturning the first verdict, but the second one was held “even though the state court found the informant and a Riverside County prosecutor had given false testimony.”
“The informant falsely testified he had asked for and received no favors. The prosecutor falsely corroborated that on the stand, according to court records. Baca was sentenced to 70 years to life,” the Times reports.
Defense attorney Patrick Hennessey, Jr., “who has represented Baca on appeal for nearly two decades, said he had never seen such an ‘egregious’ case of prosecutorial misconduct.”
“That is what bothered me,” Mr. Hennessey said. “There was never a fair discussion of how serious the issue was.”
“Sadly, this informant’s lies were bolstered by a Deputy District Attorney, who also lied,” wrote U.S. Magistrate Judge Patrick J. Walsh. “What is obvious … is that the Riverside County District Attorney’s Office turned a blind eye to fundamental principles of justice to obtain a conviction.”
So where is the state bar on this stuff? Nowhere to be seen. The state bar tries to throw the book at failed judicial candidate Clinton Parish, but turns its back on the real problems involving their profession.
And this is not an issue lost on the state bar. In October 2010, the state bar responded to the Innocence Project report.
“I welcome the report because it shines a light on an issue we need to address,” said James Towery, a prominent San Jose lawyer recently appointed as the bar’s chief trial counsel, to prosecute discipline cases against attorneys.
At the same time, a key problem is the lack of cooperation from the California District Attorneys Association which said “the problem was exaggerated in the report since less than a quarter of the prosecutors examined committed harmful error.”
Whether true or not, the fact remains that the response to Clinton Parish’s dishonest campaign was far greater than the response we have seen so far to the most egregious cases of prosecutorial misconduct in the state.
—David M. Greenwald reporting