February 16, 2000

Committee Members
Royce McFadden, Chair
Chuck Davi
Teresa Garcia
Suzanne Gere, abstaining
Dian Wood Picone
Carolyn Rivers

Reason for Investigation: The Grand Jury received complaints from two citizens alleging that the District Attorney’s Office engaged in unprofessional conduct by filing an Affidavit and a Declaration in an ongoing criminal case, People v. Martinez. The Affidavit, they alleged contained statements that were personal, libelous and intended to damage the reputations and intimidate the named persons. The Declaration contained a demeaning remark directed at one of the complainants and suggested that the other complainant, an attorney, had engaged in unspecified wrongful behavior. Of those named in the Affidavit and Declaration, only defense counsel had any material relationship to the Martinez case. The other named persons had no standing and therefore, no forum in which to reply to or rebut the allegations in the Affidavit or Declaration. Further, the District Attorney and the Assistant District Attorney were protected by a litigation privilege, making them immune from the penalties of civil libel for any statements they made in Court documents.

Method of Review: The Grand Jury reviewed copies of the documents and pleading in People v. Martinez. The Grand Jury interviewed the two complainants, the parties identified in the District Attorney’s Affidavit and the Assistant District Attorney’ Declaration, two Assistants Attorney General, the District Attorney and an Assistant District Attorney. One Assistant District Attorney was unavailable. Other persons named in the pleadings were not interviewed as the pleadings, and the statements contained therein, provided all pertinent information.

Events Leading to the Grand Jury Investigation: The 1998-1999 Grand Jury issued a report in which it recommended that the contract of a person hired by the District Attorney’s Office to reconstruct crime and motor vehicle accident scenes, and who apparently functioned as a District Attorney’s Office investigator, not be renewed by the county. The person is an independent contractor who could, and did, offer his services to defense attorneys in the community. A number of reasons were given in support of the Grand Jury’s recommendation. One reason was that when an independent contractor worked for both the defense and the prosecution (although not in the same case at the same time) it created an "appearance of a conflict of interest." The complaint which gave rise to that investigation was submitted by a person who had been opposed to the County’s hiring of the independent contractor for fiscal reasons, and who previously, and subsequently, had aired his views on the subject to the Board of Supervisors and to the public.

In July 1999, People v. Martinez was an ongoing criminal case. It recently has concluded because of the death of the defendant.

The Grand Jury Investigation: On July 27, 1999, the defense counsel in Martinez filed a motion requesting that the independent contractor working for the District Attorney’s Office be recused (removed) from the case. According to the defense motion, events occurring in a prior case, People v. Overbey, indicated that the independent contractor’s involvement in Martinez could make it likely that the defendant would not receive a fair trial. In Overbey, the independent contractor was acting as a special investigator for the prosecution, and so identified himself to a witness at the County Jail. At the same time, he was acting as an investigator for defendant Cabral, in People v. Cabral. Cabral, who had information which was exculpatory to defendant Overbey, became a defense witness in Overbey. While the reason for the independent contractor’s resignation from People v. Cabral is not stated, it is likely that he resigned because he in fact had a conflict of interest. The defense attorney pointed out to the Grand Jury that, not filing the motion to recuse the independent contractor in the Martinez case, could be malpractice in the event that the defendant were convicted at trial.

In addition to marshaling the case law, and the factual and legal arguments against the defendant’s motion, the District Attorney’s Office filed supplemental pleadings suggesting the existence of a political conspiracy. The purpose of the conspiracy was to deny the District Attorney’s Office of the services of the independent contractor by persons who, in league with the defense, had "conflicts of interest" themselves. The supplemental pleadings consisted of an Affidavit from the District Attorney, and Declarations from the Assistant District Attorney assigned to prosecute the case, seven local defense attorneys and the independent contractor. Of the seven Declarations from defense attorneys, six paragraphs in each Declaration are identical in form or substance, and six of the seven have the same typeface. Six of the Declarations used the term reconstructionalist (sic) for the work done by the independent contractor, a term unique to these documents and the use of which suggests a common source. This term is not used in the contract describing the independent contractor’s work. The Assistant District Attorney admitted that he had solicited the Declarations but refused to answer whether he had provided the Declarations themselves or a prototype to the Declarants.

The Declaration of the independent contractor is self-serving, and predictably, denies any conflict of interest. It also contains a transcript of his interview with a witness at the County Jail in the Overbey case where he identifies himself as a "special investigator" with the District Attorney’s Office, contradicting the District Attorney’s statement that "he is not an investigator," but an "expert." His contract with the county states that he is to perform "Crime scene and/or accident reconstruction as required by the County Contract Administrator, and interviews with witnesses identified by the County Contract Administrator, appear and testify in courts if required, to matters of expertise in Crime Scene and Accident Reconstruction." The District Attorney stated to the Grand Jury that the only interviews conducted by the independent contractor were directly related to crime scene and motor vehicle reconstruction activities. The independent contractor’s contract does not anticipate the day-to-day investigation of serious crimes, including homicide. Yet in Overbey, the independent contractor was at the County Jail taking a statement from a potential defense witness that had nothing to do with crime scene reconstruction.

The District Attorney states that the independent contractor fills a number of roles in his Office and attributes to him expertise that is equated with that of a physician-medical examiner, forensic psychiatrist, or a forensic chemist. The fact is that the independent contractor did not acquire his expertise in an advanced degree program. He became an expert at what he does in the manner of most sworn officers, on the job. No doubt, like most sworn officers, he supplemented his on-the-job education by attending clinics, lectures and seminars. It would be unreasonable for the grand jury to recommend that the County hire a full-time physician-medical examiner, forensic psychiatrist, or a forensic chemist. The cost would be prohibitive and a great waste. The cost to the County to train a sworn officer to become expert in crime scene and accident reconstruction would be negligible, more importantly, it is inescapable. The District Attorney is merely postponing the inevitable by failing properly to train a District Attorney’s Office investigator.

In his Affidavit, the District Attorney alleged that the Grand Jury and a specific Grand Juror acted improperly. The Affidavit contained confidential Grand Jury information. The Affidavit revealed the name of the complainant, "as to that report, the Grand Jury was contacted, I assume by … (name of complainant) … at the start of their term." Technically, the information was acquired by the District Attorney during a Grand Jury investigation of one of his contract workers and not in his capacity as advisor to the 1998-1999 Grand Jury. However, the disclosure was, at the least inappropriate, if not illegal. Further, the Affidavit suggested the "leaking" of the Grand Jury Report to the complainant prior to its publication. Upon investigation and to the best of the Grand Jury’s knowledge, no such "leak" occurred. The complainant told the Grand Jury that no one from the Grand Jury, including the named Grand Juror, gave him information about the investigation or its results. In early August, while at the Courthouse, the complainant was told that the newly released Grand Jury Report contained information of interest to him. He went to the Clerk’s Office and asked for a copy and that was the first time that he had seen the Report.

The District Attorney’s Affidavit describes the complainant’s appearance before the Board of Supervisors opposing renewal of the independent contractor’s contract. He then states, "Interestingly the timing was such that the same week that the (independent contractor’s) contract was up for renewal before the Board, the Grand Jury report and (the Martinez defense) motion were filed." The inference is that there was collusion between the Grand Jury, the complainant, and the defense attorney in Martinez to impede renewal of the contract. The defense motion was filed on July 27, 1999. The independent contractor’s contract ran out on June 30, 1999, and was renewed at the hearing on August 3, 1999. The Grand Jury ascertained from the County Administrator that the Grand Jury Report was released on August 4, 1999. The time-line does not fit the allegation. Had the Grand Jury intended to influence the Board to not renew the contract, it would have seen to it that its report was released to the public on or about June 30, 1999.

The District Attorney accused the Grand Jury and a specific past and present Grand Juror of a lack of impartiality and conflict of interest. He claimed that the Grand Juror was a tenant in the complainant’s office building and had an "economic interest" with the complainant. Therefore, her participation in and voting on the investigation gave the "appearance of a conflict of interest or actual conflict of interest." The District Attorney is implying that the Grand Juror was financially motivated to assist the complainant and that she improperly influenced the Grand Jury. His allegation implies that because she was financially motivated, she failed to disclose material information to the Grand Jury, namely her relationship with the complainant. In effect, the accusation is that the Grand Juror had received an economic benefit from the complainant to influence the Grand Jury’s action. Further, the Grand Jury had been improperly influenced because of a hidden and undisclosed relationship between the Grand Juror and the complainant. Had these statements been made in any other forum, the County would be footing the bill for defense of a libel action and paying damages if the Grand Juror’s action was, as is likely, successful.

The facts of the matters are that the building in question had been sold prior to the swearing in of the Grand Juror. There was neither an economic interest nor a conflict of interest, apparent or actual. The sale was a matter of public record and could easily be ascertained by investigators at the District Attorney’s Office. A further accusation was that during the pendency of her service, the Grand Juror had been employed by a private investigator for the defense in People v. Prado, at the time that the independent contractor was acting for the District Attorney’s Office. This working in opposition to the independent contractor in a case also caused an "appearance of a conflict of interest," According to the District Attorney, and influenced the Grand Jury to make an unfavorable recommendation regarding the independent contractor’s continued employment by the County. Twenty-one days after filing the Affidavit under the penalties of perjury, the District Attorney filed an Addendum to his Affidavit retracting this statement as being inaccurate. Because of the accusations, although wholly unfounded, the named Grand Juror has not participated in any way in the present investigation. The notion that the Grand Juror who barely knew the independent contractor and the Grand Jury as a whole had a stake in negating the independent contractor’s contract is just not plausible.

The Affidavit alleges the defense counsel in Martinez, in effect, asked him for a job. Defense counsel told the Grand Jury that the comment was not a request for employment, and was just a trivial, joking conversation. The District Attorney told the Grand Jury that, at the time, he believed it was a serious request. The suggestion that the defense counsel was attempting to bribe the District Attorney by illegally using copyrighted software and providing his office with doughnuts, while laughable, would also put the county at financial risk of litigation if made in another forum. The other paragraphs of the Affidavit, (like so much of the Affidavit and Declarations) in which the District Attorney discusses defense counsel, were not relevant or material in the Martinez case and are not worthy of repetition here. The Grand Jury feels that the statements were intended to demean the defense counsel in the Court’s eyes and do not accurately describe his twenty year long career as a criminal defense attorney. The defense attorney’s practice is centered in Monterey County and his court-appointed work represents, he states, but ten percent of his practice. His appointment by the Court to represent defendants in death penalty cases suggests that the Court finds him to be an eminently qualified attorney.

The Grand Jury will not assist the District Attorney’s Office in its character-assassination of the attorney-complainant and her professional reputation by airing all the various allegations and statements made about her in the Affidavit and Declaration. It will address several of the more egregious accusations. The District Attorney stated in the Affidavit and to the Grand Jury that because of statements made by the attorney-complainant, he was concerned for his Assistant District Attorney’s safety. He was asked if he feared for her safety, and he stated that he did. The fear that he felt was based on a tale brought to him by a person whom he refused to name unless he brought before the Grand Jury under subpoena. When asked what action he had taken to ensure the Assistant District Attorney’s safety, he admitted that he had not taken any action in response to his fear. He is the District Attorney, and as such if he has credible information that anyone was in danger of harm, he had a duty to investigate or to report it to the police. The failure to so investigate or report indicates that he did not seriously believe his Assistant District Attorney was in any danger of harm. Nonetheless, he published the suggestion that the attorney-complainant threatened physical harm to another person, which would constitute a criminal act. Once again, if these statements were made outside the Court, in a newspaper or conversation with others, the County would be subject to action for libel and all that implies. Further, if there had been some real threat to the Assistant District Attorney causing injury to her, the District Attorney’s failure to take action would open the county to other forms of litigation with resulting costs and damages.

The remarks regarding the complainant-attorney’s applications to, and conversations with, the District Attorney’s Office for a position as an Assistant District Attorney are scurrilous, at best. At worst, information disclosed by the District Attorney was damaging to the professional reputation and business of the complainant, as well as other named persons, served no evidentiary purpose in Martinez, and was gratuitously harmful.

The Assistant District Attorney and the District Attorney make much of the fact that they believe that defense counsel in Martinez gave the two complainants copies of his motion to recuse the independent contractor. The complainant stated to Grand Jury that he had purchased his copy of the motion from the clerk of the court. The defense attorney said that he had given the attorney-complainant a copy, but no one else. In any event, had the statements been true, by doing so the defense attorney would have violated no law or rule of professional conduct, and no provision of a Code or Statute. He could give copies of his documents, file-marked or not, to anyone he wished. The attorney-complainant was accused of giving her copy of the pleadings to a local reporter whom she met in the Court the day that defense counsel entered his motion. The manner of the accusations is such to suggest that she had violated some law or rule of professional conduct. The Assistant District Attorney stated to the Grand Jury that "what she did was wrong." When asked to substantiate his allegation by citing what rule she had violated, he replied that she broke "his rule." This, of course, is nonsense. The District Attorney when queried about whether the attorney-complainant or the complainant had violated any law or rule by letting others read the document or passing it out at the Board of Supervisor’s meeting, admitted that they hadn’t.

The Assistant District Attorney’s Declaration, sworn to under the penalty of perjury at paragraph 9, states, "On August 3, 1999 during the Board of Supervisors weekly meeting, (named complainant) a Allstate insurance salesman, stood up and just like a child who ate to (sic) much Halloween candy, gleefully informed all five members of the Board of supervisors of the pending motion." The only problem with this statement is that the Assistant District Attorney was not present at that meeting and had no personal knowledge of the events that he described in the Declaration. After initially refusing to answer questions about his Declaration, he admitted to the Grand Jury that he wasn’t at the meeting. He stated that "someone," he could not remember whom, told him what had occurred, he "thought it might have been (named District Attorney)." The Assistant District Attorney deliberately misled the Court in the Martinez case by filing a sworn Declaration suggesting that he had personal knowledge of the complainant’s behavior when he hadn’t. It is likely that this is sanctionable.

The District Attorney describes his Affidavit as "zealous advocacy." However, he regards the complainant-attorney’s zealous advocacy as "guerrilla tactics." There is no comparison between a defense attorney complaining of inaccuracies in an indictment, or spelling mistakes in a pleading, and the kind of remarks made by the District Attorney’s Office about the person named in the Affidavit and Declaration.

What the District Attorney’s Office has done in this matter is best described by the following story:

A fellow goes to his Rabbi and says, "Rabbi, I have come to ask your forgiveness. I suggested to people in the Town things about you and your character, bad things, which I know are not true. I know I shouldn’t have done it, I’m sorry. Please forgive me." The Rabbi said, "OK, I will forgive you, but first, go to your house and get a feather pillow. Take it to the top of the hill, pull the cover open and scatter the feathers to the wind, and come back here."

The fellow does as the Rabbi asks and when the wind has carried off all the feathers, he returns to the Rabbi and says, "I have done what you asked. The Rabbi says, "Go out now and collect all the feathers and bring them back, and make the pillow whole again." The fellow said, "Rabbi, you know I can’t do that, the wind took the feathers and blew them everywhere. I can’t find them all and make the pillow whole." The Rabbi says, "I know. That’s what you did to my reputation and your sorrow can not make it whole again either."

The District Attorney’s Office has blown away the personal and professional reputations of a number of people because it does not respect the right of a citizen to have a difference of opinion.

The Grand Jury finds no legal or ethical merit in the personal attacks contained in the District Attorney’s Affidavit. The statements were unprofessional in that they gratuitously damaged reputations and demeaned county citizens. Further, it is doubtful that they enlightened or persuaded the Court in the Martinez case.

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