Appeals Court Condemns Prosecutor, but Upholds the Conviction He Won

A state appeals court Thursday took the unusual step of strongly chastising an Orange County prosecutor while upholding the conviction he won.

Describing Deputy Dist. Atty. Mike Flory’s actions in a methamphetamine case as “outrageous misconduct,” the 4th District Court of Appeal in Santa Ana ruled that his conduct “does warrant public condemnation. Flory’s complete disrespect for the court’s authority, repeated threats to disobey a court order and subsequent violation of that order, offend our sense of the court’s inherent dignity.”

The ruling, written by Justice Eileen C. Moore with the concurrence of Justices William F. Rylaarsdam and Kathleen E. O’Leary, went on to direct that a copy of the opinion be forwarded to the State Bar of California “for review and further proceedings.” The deputy district attorney, the justices wrote, “actively undermined the cause of legal professionalism and respect for our judicial system.”

Flory could not be reached for comment. According to court documents, however, his actions were defended by state Atty. Gen. Bill Lockyer, who said in oral arguments that Flory “was right as a matter of law.”

The ruling stemmed from a 2-year-old case filed by the district attorney’s office accusing Huntington Beach resident Stephen Walter Pigage of possessing certain drugs with the intention of manufacturing methamphetamine.

During the trial, court documents say, Pigage failed to appear on the second day of testimony, sending word through an intermediary that he had received numerous threats and feared being taken into custody.

Judge Stuart T. Waldrip ordered the trial to continue and admonished the jury to disregard the defendant’s absence in reaching its verdict. Flory, however, disagreed and, according to the documents, told the judge during a closed meeting in his chambers that he intended “to argue flight as a consciousness of guilt,” even in the face of Waldrip’s direct order not to do so. And, according to the documents, the prosecutor later made reference to Pigage’s absence during rebuttal arguments.

In declining to overturn the defendant’s subsequent conviction, the appeals court said Thursday that “the lion’s share of this misconduct occurred outside the presence of the jury” and therefore had little effect on the outcome. Nevertheless, the justices wrote, Flory’s “threat to defy the court’s order was unprofessional and improper, and his decision to act on this threat was outrageous.”

A spokeswoman for the State Bar of California said Thursday that there was no record of previous complaints against Flory. While declining to comment on any specific case, Kathleen Baedix said all complaints are thoroughly investigated.

“Each case is judged on its own merits” in a court of law, she said. If found guilty, Baedix said, a lawyer can be subjected to disciplinary action ranging from a reprimand to disbarment.