Judge Urged to Remove District Attorney From DUI Lab Case

Alleging misconduct and conflict of interest by prosecutors, county defense attorneys on Thursday asked a judge to remove the district attorney’s office from the battle over 300 drunk-driving cases that are being questioned because of problems in the Sheriff’s Department’s crime laboratory.

Deputy Public Defender Brian Vogel and defense attorney Bob Huber filed a motion asking Superior Court Judge Steven Z. Perren to disqualify the district attorney’s office and appoint the state attorney general’s office to the case.

The 46-page motion alleges that prosecutors may have known as early as January that the lab’s state license was in trouble. Yet prosecutors kept the information secret from defense lawyers despite laws requiring them to turn over such potentially exculpatory evidence, the motion says.

Even if the district attorney’s office did not know about the problems, it failed to use care and accuracy in looking into the hundreds of drunk-driving cases, the motion says.

“It is clear that under either scenario, the district attorney failed to perform his duties not only to the public, but to the defendants, who he is also charged with protecting,” the motion says.

“This case has been highly publicized. The credibility and integrity of the district attorney has already been questioned. The citizens of this county are watching closely to see how this ugly mess unfolds.”

Deputy Dist. Atty. Peter D. Kossoris, the lead prosecutor in the crime lab case, said Thursday prosecutors will not comment on the defense motion until they file a response.

The response is due to be filed in two weeks, and Perren will hear oral arguments on the matter Aug. 19.

Assistant Public Defender Jean Farley declined to comment on the motion, except to say that it presents numerous instances of conflicting information given to defense attorneys.

“Frankly, it’s a very difficult situation,” she said. “We knew it was going to be difficult when we started working on [it]. Some of us feel sick, not just from the fatigue, but from the information that’s been uncovered. It makes us feel sad.”

The defense bar is challenging about 300 drunk-driving cases, arguing that the crime lab was unlicensed and violating state laws while overseeing the county’s breath-testing program.

Last week, a judge in a single drunk-driving case ruled that the lab did have a license, but that it was operating in violation of some laws regarding staffing and procedures last spring.

Despite the finding in that case, the jury earlier this week found defendant Rey David Diaz guilty of driving under the influence and driving with a blood-alcohol level higher than .08%.

The defense motion describes several examples of how the district attorney’s office allegedly failed to give defense lawyers exculpatory evidence they were entitled to:

* Deputy Dist. Atty. John Cardoza, who oversees drunk-driving prosecutions, may have learned as early as Jan. 23 that the lab had been operating on a 90-day extended license after the Nov. 16 retirement of lab director Norm Fort. But it was not until April 10 that Cardoza wrote a letter to the county defense bar, informing defense lawyers of the problem.

* Crime lab officials met May 29 with district attorney’s investigators and told them that former lab chief Fort “was committing perjury since sometime in 1994.” Yet, the district attorney’s office called Fort as a private consultant to testify in a drunk-driving case June 2, four days later, and did not reveal the perjury allegations until June 4.

* The district attorney’s office failed to investigate possible wrongdoing in the perjury allegations, or the licensing violations in the crime lab.

* The California Department of Health Services in a March 19 letter said the lab should stop doing breath-analysis tests. Yet, the lab continued working, and prosecutors continued relying on evidence that it produced for drunk-driving cases.

Statements from Cardoza “suggest that the district attorney’s office shirked its ethical obligation to research both the facts and the law with respect to evidence produced . . . prior to early April,” the motion says. “Yet the same office continued to file and prosecute criminal charges against defendants throughout this time period even after Cardoza claims to have finally realized, on or about April 17, 1997, that the crime lab had continued breath testing.”

The motion concludes, “The conflict of interest in this has gravely affected the interests of these defendants. . . . For all of the reasons discussed above, the district attorney’s office must be recused from these cases.”