My View: State Bar Extracts Its Pound of Flesh From Parish

prosecutorial-misconduct

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

About The Author

David Greenwald is the founder, editor, and executive director of the Davis Vanguard. He founded the Vanguard in 2006. David Greenwald moved to Davis in 1996 to attend Graduate School at UC Davis in Political Science. He lives in South Davis with his wife Cecilia Escamilla Greenwald and three children.

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26 Comments

  1. Jim Frame

    This article is mistitled.  After a brief mention of the Parish matter, the bulk of the discussion is directed at prosecutorial misconduct.  The reader is left wondering “But what about Parish?,” and is left with only a token revival of his name in the last paragraph.

    1. David Greenwald

      The point was the heavy-handed approach to Parish for a fairly everyday offense versus the non-existent response to prosecutorial misconduct by the same entity.

  2. PhilColeman

    On the same day, we have columns titled with eye-catching terms, “public floggings,” and getting our “pound of flesh.” Now, that sure gets me in the mood for Valentine’s Day.

    Here, we have a bone of compassion being tossed towards Clinton Parish. Never should anybody object to a counterview of compassion for anybody being publicly vilified. Like the beleaguered, UCDPD Lieutenant Pike, there are times when somebody gets so beat-up that we all begin to wonder when, “enough is enough.” Especially, in this day of electronic communication, which can be characterize as being, “Instant mass hate.” Probably some electronic forums would accept that title enthusiastically.

    Parish’s life has been destroyed. Many will say he deserved it; his public assassination of a political opponent justifies the punishment received. Yet, if Clinton Parish were a carpenter instead of a lawyer, his post-election consequence would be nil. He’d go back to pounding nails. And Parish’s sin was in the venue of political campaigning–an arena where there are no rules for fairness, decency, civility, and speaking factually.

    So, to the question of why did the Bar, in uncharacteristic fashion, give the battered Parish another severe sanction. In reading the wording of the ruling, one point stands out and may explain the legal thinking process involved here.

    The ruling administrative distinctively noted that Bar Member Parish publicly and falsely criticized the integrity of a sitting judge. That is a capital offense in the Legal Kingdom. In retrospect, it’s astonishing Parish was not disbarred.

    1. hpierce

      With all due respect, Phil (and I have high regards for you), “Parish’s life has been destroyed.” is probably incorrect.  I know of a number of people whose “lives” have been much more placed in jeopardy, not necessarily thru their own faults.  I agree that his inflated ego, political aspirations have been seriously injured.  But he still has his license to practice law (yes, “practice” and “law” are salient points), and will still probably have an economically secure life.  I also see no damage to physical or social health.

  3. sisterhood

    The California “bar” is nothing more than a group of pompous, self serving fools. Would you really want a group of arrogant lawyers judging your mistakes? Oh, and they are very aptly named the “bar”, too. That’s the one thing they got right…

    1. hpierce

      The “Bar” and many other professional “Boards” are, more than a little bit, a vestige of the medieval “guild” system.  Arguably, so are many “unions”, particularly for teachers.  Folk in certain professions are more likely to be judged guilty of ‘crimes’ in the Court system, than they are to be punished by the “Boards”.  That being said, it is not uncommon for the “Boards” to pile on when some member is found guilty (or even “charged”) in Court, to ‘protect’ their ‘guild’.  We may well see this in the teacher from Harper’s case.

      1. tj

        I’m so glad you brought this up.  We taxpayers pay for the various Boards’ staff but they aren’t looking after us:  The Board of Realtors, the Medical Board, and the Court Reporters Board which told me that their function is to protect their fellow court reporters no matter how egregious the misconduct is.

        1. hpierce

          We taxpayers pay for the various Boards’ staff but they aren’t looking after us” .. unless you have more information than is my ready disposal, I don’t believe this is particularly true.  I readily acknowledge I have no hard data to confirm that.   Department of Consumer Affairs (umbrella for most professional “boards”) is mainly (what percentage, not sure, but over 50%, might, given State budget concerns be close to or equal to 100%) funded by registration/renewal fees paid by the registrants.  The second part of your post, regarding looking after the ‘consumers’ (“us”) I have no direct knowledge of, nor strong opinion about.

          Attorneys/barristers/lawyers may not be under the aegis of Consumer Affairs Dept. Just don’t know (or care).

  4. Tia Will

    I think that there is a much bigger picture of lack of equal administration of justice than has been noted so far also illustrated in today’s articles. That is the juxtaposition of the sentencing of the four youths for what was essentially a brawl, with the determination that Mr. Parish needs to take an ethics course, with turning a blind eye to prosecutorial misconduct.

    What David did not stress is that with successful completion of the ethics course, the discipline ends for Mr. Parish and he can continue with his career. The destruction of his career here in Yolo County was not a judicial action, it was a loss of support from his superiors. These two adverse outcomes should not be confused. Does anyone really believe that Mr. Parish would not benefit from an ethics course ?  A better outcome from my point of view would have been for him to offer to take a review ethics course as part of a job remediation which would have allowed him to maintain his position. Apparently that was not offered.

    David also did not stress the importance of deterrence of others who might be tempted to use “dirty tricks” in a campaign. Unlike in the case of the four young men involved in a spontaneous fight who have or will spend years behind bars and whose sentencing will  have no deterrence value for others since this was not a premeditated act and young men frequently get into fights that are not pre planned, campaign strategies are pre planned with plenty of time for reflection about what trouble could arise from smearing your opponent. Thus a public formal admonishment would seem in order to me. The destruction of his existing career is what I see as “heavy handed” here, not the formal acknowledgement of wrong doing and need to make repair in the form of a remedial course.

    None of the above however, lessens my complete disgust with our systems dismissal of the wrong doing of prosecutors. To me our judicial system has the priorities for “punishment” exactly backwards. With greater responsibility and the degree of magnitude of potential harm from misconduct should go the greater degree of responsibility and thus the greater degree of discipline. Note that I did not say “punishment” because I personally believe that “punishment” has no positive connotation and serves only a desire for revenge while discipline implies the acknowledged ability to learn from one’s poor choices and too make better choices in the future.

    To me the degree of discipline should be greatest for prosecutorial misconduct, somewhat lesser for knowingly falsely smearing a fellow candidate, and least for a spontaneous brawl. I believe that what we see represented here is anything but an equal application of justice.

    1. David Greenwald

      Those are fair points – I chose to illustrate the position of the bar. The bar in fact pushed for a lot more than they got. They pushed for a finding on all five counts, they only received it on one of them and as you mention, even that was muted by the ability to restore his standing. But that was determined by the review board not the bar who pushed for the maximum penalty and in contrast to their very light rebuke of what I consider far more serious.

  5. hpierce

    I guess everyone is missing the dissing David is (perhaps inadvertently) doing… believe Mr Parrish spells his name with one more “r”.  Or, perhaps the lost “r” is for ‘respect’.  Mr Parrish has definitely lost that.

    As far as the career he aspired to, perhaps we should spell his last name “Perish”…

  6. Anon

    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?…

    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.

    Mr. Parish did not conduct himself as his profession’s legal ethical rules require, something he is mandated to be trained in on a regular basis (continuing legal education requirements). Therefore he was required to take a refresher course to make sure he better understands his ethical obligations, since he obviously didn’t seem to understand them or chose to willfully ignore them.  Why is that “over the top egregious” by way of punishment?  If the state bar tends to turn a blind eye to more serious breaches of the public trust such as blatant prosecutorial misconduct, you should be calling for the state bar to more uniformly penalize wrongdoing, not asking for the state bar to go lighter on a particular individual.

    1. hpierce

      Good question… I do know that City of Davis management employees, and Board members of special districts are supposed to do so on ~ 2-3 year cycle.

      Then, there is the question of whether it is an “exercise” or whether it ‘sticks’.

      I would opine that an attorney who is a government employee probably has that same requirement, but don’t know that as a fact.

      “ethics” training reminds me of the old ‘joke/riddle’…. what is the difference between an ethical person and a moral one? An ethical person knows it is wrong to “cheat” on a spouse… a moral person just doesn’t “cheat”..

    2. Anon

      To Tia and hpierce: Every 3 years lawyers much complete 25 hours of ethical training. Certain attorneys are exempt:

      “officers and elected officials of the State of California

      full-time professors at law schools accredited by the State Bar, the American Bar Association (ABA), or both

      members employed full-time by the State of California as attorneys or administrative law judges on a permanent or probationary basis, regardless of their working hours, who do not otherwise practice law

      members employed full-time by the United States government as attorneys or administrative law judges on a permanent or probationary basis, regardless of their working hours, who do not otherwise practice law”

      1. sisterhood

        Sort of off topic but I’ll weigh in anyway. If one is a lawyer who practiced over ten years without one disciplinary action, and was in good standing with the CA bar, and unexpectedly inherits a modest amount of money and decides one  doesn’t want to be a lawyer anymore, one can stop taking the CEB (continuuing education of the bar) classes. One can spend 12 months writing to all their clients and explaining they are no longer practicing law in CA. One can tell the P.O. their forwarding address, and post a sign on their business that they are no longer practicing law. One can call every client in person. One can leave ten or twenty phone messages with any client they cannot reach, and save the mail that was returned from the P.O. marked “undeliverable”. When one’s business is finally, hnonestly, and ethically shut down, one can enjoy getting threatening letters from the CA “bar” that one is about to become “disbarred” for not taking the propr CEB classes and not notifying one’s clients that one is closing their business. One can enjoy hearing from associates:”Hey, I read online you were disbarred!”

        Perhaps any lawyer reading this may advise one to hire a lawyer to fight the bar. One would rather enjoy their modest inheritance, and not have to deal with those types any longer.

    1. Anon

      It doesn’t work that way.  There is a State Bar Court that makes decisions in disciplining attorneys.

      From the State Bar website:

      “California is the only state in the nation with independent professional judges dedicated to ruling on attorney discipline cases.
      The State Bar of California investigates complaints of attorney misconduct. If the State Bar determines that an attorney’s actions involve probable misconduct, formal charges are filed with the State Bar Court by the bar’s prosecutors (Office of Chief Trial Counsel).
      The independent State Bar Court hears the charges and has the power to recommend that the California Supreme Court suspend or disbar attorneys found to have committed acts of professional misconduct or convicted of serious crimes.
      For lesser offenses, public or private reprovals may be issued by the State Bar Court.
      Also, it can temporarily remove lawyers from the practice of law when they are deemed to pose a substantial threat of harm to clients or the public.
      Lawyers may seek review of State Bar Court decisions in the California Supreme Court.
      The State Bar Court conducts hearings and makes decisions and formal recommendations on disciplinary matters.
      Since 1989, the court has used full-time judges appointed by the California Supreme Court, legislature and governor. The court is divided into two departments — a Hearing Department and a Review Department, headed by a presiding judge.”

  7. Davis Progressive

    NY Times editorial: “How to Force Prosecutors to Play Fair

    When prosecutors cheat and lie repeatedly to win convictions, should their office be held accountable?
    When a man spends years, or decades, in prison as a result of such prosecutorial misconduct, should he be compensated?
    These are not trick questions.
    And yet in a bizarre 2011 ruling, five justices of the Supreme Court managed to answer no to both, essentially closing off one of the only ways to hold prosecutors and their offices liable for wrongdoing.
    In a new petition before the court, two Louisiana men who were exonerated after 27 years behind bars are asking the justices to review their case and allow them to sue the New Orleans prosecutor’s office for money damages for violating their constitutional rights. If the justices agree to hear the petition, they could undo some of the harm they did in 2011 and help cure what one federal appellate judge has called an “epidemic” of prosecutorial misconduct across the country.

    1. Anon

      Here is the narrow holding:

      ““By their own admission,” he continued, “the prosecutors who tried Thompson’s armed robbery case failed to carry out this responsibility. But the only issue before us is whether Connick, as the policy maker for the district attorney’s office, was deliberately indifferent to the need to train the attorneys under his authority.” 
      The answer to that question was no, Justice Thomas wrote, given what he said was an absence of proof concerning a pattern of misconduct.”

      This is the problem with trying to analyze Supreme Court cases. Often the issue before the judges is a very narrow one, and the only issue they can weigh in on. Apparently in this case there was no proof on the record that there was a deliberate attempt not to train the attorneys under the DA’s authority.

      Don’t get me wrong, I’m all for holding prosecutors accountable. But you have to do it through legislative action, but cannot necessarily do it through the Supreme Court because of its often very limited scope.

      1. Davis Progressive

        i’m sorry but i completely disagree.  connick and more importantly his office is responsible for the conduct of those under his authority.  but importantly thomas missed some key points.  first, connick failed to provide training about the brady rule.  ginsburg in dissent argued that brtady violations were neither confined to this case “were not singular and they were not aberrational.”  this is a pattern of abuse.  also, it wasn’t one prosecutor messing up, but no fewer than five prosecutors.  clarence thomas made this into a narrow ruling, but i think he got it wrong.

  8. tj

    Anonymous:

    I know the Bar has its own court but I also understand that local district reps have some influence in these cases.

    Do you know who the local rep is?

    Thanks —

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