I am considering pressing ethics violation charges against the DA. The DA has been purposefully misleading the settlement discussion, intentionally misdated misjoindered charges, refuses to acknowledge exculpatory evidence, and I have emails that document false statements. Should I proceed with these charges, or will this hurt my case? The Department will be getting a new judge at the end of this month. My current judge has some very clear racial prejudice.... May I continue the case and wait for the new judge?
Hello again tempat and welcome back to JustAnswer.As you surmised in your response to Fran, I have been tied up. I am two and a half weeks into a trial in which my client is facing a possible sentence of 77 years to life in prison for child molestation. I have been giving his case my undivided attention, but we are out of session tomorrow and I have a little breathing room today.There have been a few instances in which unethical conduct by deputy DA's has been addressed by trial courts in California, usually (but not always) to the benefit of defendants. More likely, however, is that the DA's office itself will take action regarding unethical conduct by deputies. As recently as April, a deputy DA in Santa Clara county was fired for the latest in a series of allegations of misconduct; two or three years ago, another Santa Clara DDA was fired for withholding evidence in a number of cases.With respect to your situation, several questions come to mind:1) In what specific respect has the DA been misleading the settlement discussion? If he has made specific statements of purported fact which are not true, that's one thing. If he has argued against or downplayed the significance of some aspect of the situation, though, that's a different thing entirely. In other words, the significance of the "misleading" depends on the substance of the deception and the degree to which it bears on the issues in the case.2) We have previously discussed the misdating issue -- as I indicated in my previous response regarding that issue, the incorrect date can be corrected in a variety of ways: by the DA amending the complaint/information; by way of a defendant's motion (995 if post prelim or motion in limine prior to trial, for example); or by amendment to conform to proof after the trial is completed and prior to jury deliberations. As I mentioned in my earlier answer, the error in the date is really significant only if it hides a statute of limitations defense. Otherwise, there doesn't appear to be any advantage to the prosecution in misdating a charge and it is unlikely that this would be viewed as an ethical violation.3) You have been fighting the misjoinder by way of a severance motion -- what is the status of the case in that regard? Misjoinder of charges is improper; however, unless you can demonstrate that this was done to obtain an unfair advantage in the prosecution, it is also unlikely that this would be viewed as an ethical violation. This is particularly true because there is a legal/judicial remedy -- severance of the improperly joined charges. If the court rules against you on severance, there is no chance that the state bar would find the misjoinder to be unethical.4) I'm not sure what you mean when you say the DA refuses to "acknowledge" exculpatory evidence. I suspect that you mean it in the sense that he refuses to recognize or accept what you perceive to be exculpatory evidence as valid. That, of course, may result from nothing more or less that the DA's perception that what you believe to be exculpatory is not. If that's the case, and the evidence is susceptible to a reasonable interpretation that it is not exculpatory, then it is not unethical for the DA to decline to accept it as exculpatory. Or, if the DA simply doesn't believe the evidence (for example, if it is in the form of an exculpatory statement by a witness and the DA simply thinks the statement is not true), it is not unethical for the DA to be of that opinion.5) Emails which document false statements by the DA might well be enough to demonstrate unethical conduct if those false statements were made by the DA and are pertinent to the case (e.g., false statements of fact about the evidence). The strength of such false statements in proving an ethics violation would depend on several factors -- how many such false statements were made, how central they are to the prosecution of the case, and to whom and under what circumstances they were made, to name a few. It would be necessary to read the specific statements to determine the likelihood that they would be useful in an ethics proceeding.The utility of making ethics violation charges against the DA may also vary depending on other factors. For example, if you make such charges against a specific deputy DA, the DA's office could re-assign the case to another deputy, comply with any ethical obligations and proceed with the case. Unless the ethical violations are such as to give rise to suppression or exclusion of evidence as a remedy, or are so egregious as to amount to a denial of due process (e.g. a so-called "Brady" violation for failing to disclose exculpatory evidence), even a successful claim of ethics violation could end up having little impact on the case itself.As for waiting on a new judge, you can always ask for a continuance without openly stating that you are doing so because of your concerns about prejudice on the part of the current judge. Are you still in the pre-preliminary hearing stage? If so, does the county you are in use a master calendaring system for prelims or will the prelim be heard by the judge or in the department to which you are currently assigned? I don't recall now if I previously asked what county you are in -- if you let me know, I might know the answer to that question myself.If the court uses the master calendar system, you can file a CCP 170.6 challenge to the judge who is assigned to hear the prelim at the time that assignment is made. If you are already assigned to the court/department which will hear the prelim (sometimes referred to as "assignment for all purposes"), it is too late to file a challenge to the specific judge. Therefore, continuing the case until the new judge is assigned would be the only way to get away from the one you think is prejudiced.Thanks for asking for me again. If you have any other questions about this, please let me know -- I will be available this evening and tomorrow to respond, before resuming my trial on Friday.Jim Reilly41102.0140792824
1) Here are a couple of examples and they are each documented by emails:
Customer-- have the morning off from court, so wanted to give you my thoughts on your issues (interpolated below).1) Here are a couple of examples and they are each documented by emails:DA to Defense attorney B...."D gave attorney A the boot because Attorney A did not believe his story"Fact: Attorney A is still a very vital part of my defense team, and has complete faith in me.This would not be relevant to any issue in the case, is easily refuted by Attorney A and, because it appears to be a statement of mistaken belief on the part of the DA, would most likely not give rise to any ethical issue as far as the State Bar is concerned.DA to Defense Attorney B...."Attorney A told D he would have to do jail time"Fact: Email from Attorney A to D "No jail time is a done deal"There is no way to tell from this how the DA arrived at the conclusion that Attorney A told you that you would have to do jail time. This could be a simple miscommunication and, in any event, once again is not relevant to any issue in the case, is readily refuted by Attorney A and is not likely to give rise to any ethical issue as far as the State Bar is concerned.DA to Defense Attorney B when working out a single misdemeanor plea for 2 felony sex counts while discussing registration: "we can work something out on the sex charge, but we have a problem with no jail time on the weapons charge, unless the Judge agrees to that" Attorney B goes into judges chambers to discuss no jail time on the weapons charge. DA begins the discussion with "we will require life long registration on the sex charge" Attorney B is so disgusted and taken by surprise, he quits the negotiation, leaves the judges chambers, and then quits my team after he was given payment in full...leaving me without an attorney and without my retainer fee.I'm not sure what "we can work something out on the sex charge" means; it is not a promise of no registration and any attorney worth his salt knows that conviction of many sex offenses requires lifetime registration. Frankly, I'm not impressed with the way Attorney B handled this situation -- quitting in response to that statement is just flat unprofessional. And probably would be grounds for you to recover all or at least part of what you paid him in a fee arbitration. Once again, however, this does not strike me as grounds for an ethical/disciplinary proceeding against the DA.There are several other examples of this kind of maneuvering and outright lies. Most have written documentation.2) The greatest example is to make them LOOK like the same crime, when they are not. For the purpose of misjoindering, and for unfair leaveraging...I have appealed this all the way to the Supreme Court. No court has acknowledged that the charges are properly joined, but rather, giving the trial court the opportunity to sever them....As I've said before, it does look like the offenses are not properly joined, but it will now be up to the trial court to take action.3) I think these will eventually be severed. We are still in the pre-preliminary stages and a motion for reconsideration hearing is on the docket. The way this was done by the DA is very unfair. According to the California Bar Association, I can file ethics charges through them....That is true, you can file ethics charges through the State Bar (in fact, that is the only way to do so), but I do not think any of the specific examples you have cited will result in discipline of any kind.4) The interpretation of this evidence is not reasonable, such as very well documented extortion attempts...even calls to me and my staff by the alleged victim, demanding money to make the case go away.Interpreting the evidence is a different situation -- the DA has the right to interpret the evidence however she sees fit. And it will be up to your lawyer to put your interpretation on the facts. If you can prove extortion attempts, that will go a long way toward an acquittal (though it is not a guarantee).5) This is Fresno County. The Judge has shown extreme racial prejudice, and is visibly angry because I appealed his ruling on severance. It is to my distinct advantage to wait until the new (African American) judge takes the bench next month. I will ask for a continuance, and I await your reply regarding the ethics charges now that you have a few more specifics.Unfortunately, Fresno is not a county in which I have practiced at the Superior Court level, so I don't know the judges there. However, based on what you've said, continuing the case appears to be a good idea.PS...I am being prosecuted by the Senior DDA in charge of sex crimes....therefore her win in that area is vital to her, and she is willing to break all the rules in order to win.So far, I don't see that she has broken any rule that will give rise to consequences that will help you. You need something like a failure to turn over exculpatory evidence to get to that level. Your remedy at the moment is to get the improperly joined charges severed and then to proceed to show that the evidence is insufficient to convict you of either._______________________________________Not exactly what you wanted to hear, I know, but you need to get Attorney A, if he is still working for you, to focus on the severance issue and the evidentiary issues, whatever they might be, with respect to the charges.Jim Reilly41104.1625157407
CA Atty since 1976, primarily criminal law. 150+ jury trials.
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