Taking on the D.A.: Legitimate Beefs or Legal Posturing?

Item: A retired state appellate judge lambastes the San Diego County district attorney’s office for its prosecution of a murder-for-hire case, ruling that prosecutors intimidated witnesses and engaged in “blatant improprieties” to win the conviction of insurance executive Herman Martin--in sum, that the case was a “misuse of prosecutorial power.”

Item: Though he refuses to dismiss the charges against accused police killer Sagon Penn, a trial judge concedes that the district attorney’s office was wrong in failing to turn over a critical police document to defense lawyer Milton J. Silverman and in investigating a juror after promising not to do so.

“You’ve been jerked around and I’ve been jerked around and the people of San Diego have been jerked around,” Silverman tells Superior Court Judge Ben W. Hamrick.

Item: Lawyers for Ronaldo and Hector Ayala, brothers charged last year in three execution-style slayings, allege in court that the district attorney’s office and San Diego police hid the existence of reports possibly linking the homicide victims to drug dealing--a crucial element of the brothers’ defense. Prosecutors deny any wrongdoing. A hearing will continue later this week on a defense motion to punish the alleged misconduct by dismissing the charges.

These cases--Martin, Penn and Ayala--are the latest in an escalating barrage of attacks on the integrity of the San Diego County district attorney’s office.

With growing frequency, defense lawyers are raising allegations of prosecutorial misconduct: charges that prosecutors have impeded the discovery of evidence, harassed witnesses or gone to judges behind the defense’s back to advance the prosecution case.

Dist. Atty. Edwin Miller has bitterly rejected such charges virtually every time they have been raised. Miller calls the complaints of prosecutorial misconduct a “fad” and dismisses them as a mere “tactic” employed by defense attorneys to divert courts from the issue of the defendants’ guilt.

“I personally point with pride to the ethical nature of the operation of this office and to the honesty of my attorneys, and I resent the suggestion that somehow my office engages in unethical conduct,” Miller said in an interview last week. “Because it simply isn’t true.”

Defense lawyers, though, can point to allegations of misconduct in more than a dozen cases in the last decade--with court findings in their favor in half of them--as justification for a growing suspicion that the ethical standards of the district attorney’s office are slipping.

Operating in a tough-on-crime political climate and unfettered by their supervisors, who discount criticism rather than undertake self-appraisal, some prosecutors have become more inclined to cut corners and adopt a philosophy that the ends--convictions--justify the means, critics contend.

“What happens is the combat mentality takes over, and no one stops and takes a look at the long-term view of what this behavior says about the prosecution of cases,” said defense lawyer Elizabeth Semel.

Veteran defense attorney Louis Katz added: “The problem you have is that when the prosecution knows prosecutors don’t get disciplined or have criminal charges filed against them because they cut corners, there’s a tendency in the system to want to win. And sometimes, attorneys get a little careless or take advantage of their power.”

Many defense lawyers remain confident that Miller’s staff acts in good faith. But even some who think “misconduct” is too harsh a word to pin on the prosecutors’ performance nonetheless note a change in the approach of many lawyers in the district attorney’s office.

“Our attorneys have noticed what they call a subtle change in attitude that doesn’t really amount to misconduct,” said Elaine Alexander, executive director of Appellate Defenders Inc., a nonprofit law office that represents indigents on appeal.

“The deputies seem on the record to be more aggressive, more politically motivated, less objective and more adversarial in their approach to cases,” she said. “We’ve noticed the use of innuendo in questioning, and a sense of not dealing aboveboard in terms of the evidence they have in their possession.”

“I wouldn’t say they’re lying,” Alexander said. “But you just can’t rely on their representations for the whole truth.”

Miller, the veteran district attorney reelected without opposition this spring to a fifth four-year term, dismisses the broadsides.

“I refuse to develop policies in this office which will lead to intimidating my employees,” he said. “They fight, and I want them to be aggressive. They fight hard and they fight fairly, and I resent any implication to the contrary.”

The record consists of hundreds upon hundreds of cases every year in which no challenges to the integrity of either the prosecution or the defense are made. Allegations of misconduct are exceptional, not typical.

Yet the well-publicized charges in the Penn and Martin cases also are not unique. During Miller’s tenure, and especially in the last decade, the district attorney’s office has had its ethics attacked in several cases. Some examples--and the ways Miller has responded:

- The most glaring instance of wrongdoing met with swift retribution. Deputy Dist. Atty. L. Forrest Price was suspended and charged with a felony after it was learned that he had altered evidence in a 1976 criminal trial. A jury acquitted Price of the criminal charge, but Miller vigorously resisted his efforts to win reinstatement.

Miller said last week that the Price case was the only substantiated example of deliberate prosecutorial misconduct in his 15 years in office.

“When I see prosecutorial conduct that amounts to bad faith, deliberate violations of the canons of ethics, or even the commission of a crime, I take prompt action,” he said.

- In another 1976 case, the 4th District Court of Appeal ruled that Miller’s office violated the American Bar Assn.’s Minimum Standards for Criminal Justice and interfered with the attorney-client relationship in its dealings with informant Harold (Tiny) Moore.

According to the appellate court’s opinion, the district attorney’s office enlisted Moore as an informant in investigations of organized crime without telling his defense lawyer. A prosecution investigator falsely told Moore that the lawyer had been disbarred. He was told to give the lawyer a false phone number and not to appear for his own trial on a stealing charge.

Because of his cooperation with prosecutors, the opinion says, Moore’s life was threatened. He grew so desperate that he attempted to hang himself in County Jail on Christmas Eve, 1974.

“The district attorney has undermined Moore’s right to counsel, imperiled his life, overreached and lulled him with illusory promises and caused substantial delays in his trial,” Justice Gerald Brown wrote. Another judge termed the case “shocking” and “reprehensible.”

That time, Miller took no steps to discipline the staff members involved. A decade later, he continues to defend his office’s conduct.

“I still resent that case,” he said last week. “The result was ludicrous.”

The appellate judges, Miller insists, based their ruling on an incorrect reading of the facts. They ignored, he said, the fact that Moore asked prosecutors to hide his informant status from his lawyer, for fear that the attorney would endanger him by leaking the information to other criminals.

In response to the case, Miller’s office drew up a manual on dealing with informants--not, he said, because of errors in handling Moore, but to help prosecutors deal with the stringent, sometimes unrealistic, rules imposed by the courts.

Such action, in place of critical self-examination, strips court rulings of their power to teach lessons and rein in excesses, Miller’s detractors say.

“When the Moore case came down, to my knowledge, nothing happened to the individuals at the sanction level,” said Assistant Public Defender William Saunders, who represented Moore in the appellate court. “Because there’s nothing administratively done to punish them for what they did, it’s like a wink and a handshake, and they’re encouraged to continue doing it.”

- Justice Brown again came down hard on Miller’s office the following year. In a 1977 opinion, he said the district attorney’s office had raised “grave ethical issues” by privately contacting the supervising criminal judge of the Superior Court to question why the sentencing of an El Cajon police officer, convicted in a series of burglaries, had been assigned to a new, inexperienced judge.

“The appearance of justice is not satisfied where the People, behind closed doors, have been the moving force in the transfer of this case from the assigned judge,” the appellate court ruled.

Miller again rejected the court’s decision, calling it “ridiculous,” and again said the ruling was based on a misreading of the facts.

The opinion, he said, was laced with “innuendoes” about the prosecution’s motives. But Miller insists that he ordered the inquiry by Richard Huffman--then his chief deputy, and now himself the supervising criminal judge of the Superior Court--not to influence the outcome of the case, but because it appeared that the defense was manipulating the court assignment.

Miller reserves some of his strongest criticisms for Brown, the now-retired judge who also wrote the report blasting the district attorney’s office in the Herman Martin murder case.

“I fear that the people on the appellate courts--and Justice Brown would be an example--are not in touch with what is going on in the real world,” Miller said.

- Even when his deputies have become the subject of repeated allegations of misconduct, Miller has not seen a need to investigate their performance or criticize their actions.

Twice in 1980, Deputy Dist. Atty. Charles Peake, who since has died, was upbraided by judges for holding back information from the defense in murder cases.

In July, the 4th District Court of Appeal ruled that Peake had offered “misinformation and contradictions” to a Superior Court judge about the testimony of two witnesses in the murder case against wheelchair-bound Ronald Dean Pendergast.

The appellate judges praised the district attorney’s office for normally being quite open in providing information to the defense. But Peake, they said, “failed to meet the required standard of conduct.”

Later that year, Peake was the prosecutor in the murder case of Clifford Lee Stone, an avowed homosexual who said he killed a woman in self-defense after she raped him. Silverman, defending Stone, alleged during the trial that Peake had not provided information about the criminal records of certain prosecution witnesses.

Superior Court Judge Earl A. Maas cited the Pendergast decision and took Peake to task.

“It appears to me there is a basic philosophy of yours,” he lectured, that “you are not going to give up anything, acting like a dog in a manger, until they drag it out of you.”

Miller said last week that the criticisms of Peake never came to his attention. “That’s all news to me,” he said.

- In 1983, the 4th District court reversed the first-degree murder conviction of Stanley Shaparnis for the slaying of Paul Cruz in 1981. The court ruled that then-Deputy Dist. Atty. Bernard Revak failed to disclose to the defense a police report that could have led lawyers to a witness they had tried, unsuccessfully, to locate before trial.

A few months later, defense attorney Semel alleged that Revak hid the existence of interviews with a key prosecution witness in the murder case against Billie Jean Clark, who was accused of arranging the killing of her husband, George, a retired naval commander.

Ultimately, Clark’s conviction was upheld and Shaparnis was again convicted in a retrial. Miller has only praise for Revak, a winner of the California District Attorneys Assn.’s prosecutor-of-the-year award who now is an assistant U.S. attorney.

“He’s one of the best trial attorneys we had in our office,” Miller said. “He was prosecuting cases before most of these defense attorneys who are critical were going to law school.”

Was there a lesson learned from the court’s criticisms?

“Our mistake, if there was any, is we were careless in keeping track and inventorying the things that were discovered,” Miller said.

“But you can’t show me anything as far as discovery material that has been anything other than either some alleged mistake or error,” he said. “Nothing in this whole area of discovery has any relation at all to deliberate, bad-faith actions on the part of my attorneys. It simply isn’t true.” Most problems in obtaining evidence, Miller added, stem from failures by law enforcement to turn it over to the prosecution.

But Semel says such cases--like the allegations in the Penn case about a police document and videotape that did not reach Silverman’s hands until after an inconclusive trial--are evidence of an “inexcusable” reluctance by some prosecutors to meet their obligation to share information with the defense.

“I think where you see it happen is where a prosecutor becomes completely taken over by his role as an adversary,” she said.

“People get blinders on in these cases. And people want to win at any cost.”