X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
When a state appeal court ripped into Kelton Tobler in May for committing misconduct, it mentioned him by name 23 times in 25 pages. The court found it “highly disturbing” that the Riverside County prosecutor bargained with a criminal defendant outside the presence of his lawyer. But when two other appellate courts found prosecutorial misconduct by deputy district attorneys from three different counties in rulings released in April, May and July, their names were omitted. Instead, the courts chose to refer to them generically as “the prosecutor,” 26 times in the first opinion, 22 in the second and an eye-popping 44 in the third. Deputy District Attorneys Darci Johnson of Los Angeles, Benjamin Field of San Jose and Gordon Isen of Santa Cruz escaped the public shame associated with being named publicly for acting unprofessionally. There seems to be little rhyme or reason behind appellate courts’ decisions to omit prosecutors’ names. A few justices attribute it simply to personal writing styles or case-by-case happenstance. Yet some attorneys, especially criminal defense lawyers, believe there has to be more to it, and that decisions to publish deputy DAs’ names are the exception, not the rule. That’s a sore point, because many say the appellate courts don’t hesitate in naming � and disgracing � defense lawyers. Even expert witnesses, some say, are routinely named when their testimony is questioned or berated. “It’s annoying,” says Grace Suarez, an appellate lawyer who for years was a deputy public defender in San Francisco. “And it does sort of leave you with the taste of preferential treatment.” While no one apparently keeps track of appellate rulings that omit prosecutors’ names, defense lawyers and appellate specialists say they come across them on a regular basis. “It’s not uncommon,” says Paul Fogel, a partner in Reed Smith’s San Francisco office and the current president of the California Academy of Appellate Lawyers. “There has been a small debate in the appellate community about naming lawyers.” Fogel says omitting prosecutors’ names “suggests a double standard” and that justices could be doing it subconsciously “out of courtesy.” “I think they don’t want to embarrass people,” he says. To find a name that’s omitted requires either a trip to the courthouse in question or calls to the appellate lawyers. But prosecutors think the whole idea that they get special treatment is bunk. David LaBahn, executive director of the Sacramento-based California District Attorneys Association, correctly points out that Tobler wasn’t the only prosecutor singled out for inappropriate behavior in recent years. “There are a number of published appellate opinions,” he says, “where they have, in fact, named the prosecutor by name.” LaBahn points to 1997′s People v. Kasim, 56 Cal.App.4th 1360, in which San Diego County Deputy DA James Fitzpatrick was called on the carpet, and 2003′s People v. Pigage, 112 Cal.App.4th 1359, where Orange County prosecutor Michael Flory was publicly condemned. Fresno’s Fifth District also flogged Stanislaus County Deputy DA Rick Distaso in Dustin v. Superior Court ( People), 99 Cal.App.4th 1311. William McGuiness, administrative presiding justice of San Francisco’s First District, and Conrad Rushing, presiding justice of San Jose’s Sixth District, say there’s no conscious policy at work in their courts. McGuiness says decisions to leave out names “would be made on a case-by-case basis” and “would be up to the author and the panel.” Rushing calls it a “style issue.” “Many chambers in the court don’t even use the parties’ names or the appellant’s, respondent’s, victim’s, witnesses’ and so on,” he says. “And in a way, this may be a way of trying to modestly make the opinion appear more focused on the analytical issues � which is really what we’re here to do.” Rushing authored People v. Shazier, 06 C.D.O.S. 3836, the May opinion that didn’t name Santa Clara County prosecutor Benjamin Field. Sixth District Justice Richard McAdams wrote People v. Gomez, H028380, the unpublished July ruling that omitted the name of Isen, the former Santa Cruz County deputy DA. Unlike the appellate courts, though, the California Supreme Court typically names prosecutors who’ve done wrong or been accused of it. Last year, the high court reversed one death sentence because Los Angeles County Deputy DA Steven Ipsen had improperly argued at trial that two co-defendants in the same murder had each delivered the fatal hatchet blow. And in January 2003, the court absolved San Francisco prosecutor Charles Kirk of inducing false testimony in a capital case. Then four months later, the justices named L.A. prosecutors Phillip Stirling and Larry Droeger, even though their misconduct wasn’t severe enough to reverse the conviction in a gang-slaying trial. The Supreme Court is perhaps best known on this issue, however, for a 53-page ruling in 1998 that trashed L.A. prosecutor Rosalie Morton. The court referred Morton, a well-known and feared attorney, to the State Bar for discipline and reversed the death sentence after finding a “mountain of deceit and unethical behavior.” Although Morton never was punished by the State Bar, the opinion in People v. Hill, 17 Cal.4th 800 � which accused her of misstating the law, referring to facts not in evidence, intimidating witnesses and improperly invoking the Bible � is still regarded by many lawyers as the pinnacle of prosecutorial misconduct rulings. Even Chief Justice Ronald George cites that decision when discussing the fact that the high court always names names. The Supreme Court has no written or verbal policy on the use of prosecutors’ names, George says, and he believes the lower appellate court’s use or nonuse could be “just habit or something like that.” Nonetheless, he thinks naming offending lawyers might be a good idea. “I hesitate to say anything that would suggest we’re micromanaging the court of appeal,” George says. “But speaking on a more global sense, there shouldn’t be a double standard. If you’re going to identify the defense source who did something wrong, you should also identify the prosecutor who does something wrong.” That kind of policy might have headed off the need to publicly roast Morton in 1998. Appellate courts had rebuked Morton three times previously, but on two of those occasions she wasn’t named. Spring Valley solo practitioner Barbara Smith � the defense lawyer in the 2003 case involving prosecutors Stirling and Droeger � and Oakland appellate specialist Jon Eisenberg think appellate courts may publicize names only when prosecutors have misbehaved more than once or stepped over the line intentionally. “Consciously or unconsciously,” says Eisenberg, of Eisenberg and Hancock, “appellate justices reserve mentioning the names of prosecutorial miscreants for the worst of the worst. “If your name is in there,” he adds, “you’ve been very, very bad.” There could be some truth to that. Chief Justice George recalls that former L.A. prosecutor Morton’s behavior was so “egregious” it couldn’t be ignored. But, he says, he’s seen other incidents of misconduct that were “borderline” or “more of an iffy situation.” But is it ever necessary to use names? George and others point out that committing prosecutorial misconduct already carries weighty consequences: State law requires jurists who find misconduct to report attorneys to the State Bar for possible discipline ranging from a simple reprimand to disbarment. Santa Clara University School of Law professor Gerald Uelmen is among those who say names should be used sparingly. “From fundamental fairness and due process perspectives, it has a significant impact on a lawyer’s reputation to be named as the perpetrator of misconduct in an opinion,” he says. “And the attorneys whose conduct is being questioned or criticized aren’t parties to the proceedings and don’t have an opportunity to respond or explain.” A message is sent by appellate justices, Uelmen contends, even if they call out a prosecutor without naming him. “All you achieve by naming the attorney is besmirching someone’s reputation.”

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Advance® Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

For questions call 1-877-256-2472 or contact us at [email protected]

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.