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