Prosecutor Finds Self in Role of Prosecuted

Michael Duarte is a veteran of high-stakes courtroom battles, prosecuting gang members, murderers and a serial killer.

But these days, he is engaged in legal warfare of a different sort, and the stakes could include his future in the district attorney’s office. Duarte is trying to fend off accusations that he intentionally concealed evidence from defense attorneys during a capital murder case.

In an interview with his attorney, Harland Braun, and two sympathetic colleagues at his side, Duarte said he is wrongly accused and feels besieged.

“I’m not saying I’m perfect. People make mistakes,” said Duarte, weeping at times. He also blamed overzealous defense attorneys, trial pressures and other lawyers in his office for his plight.

Although prosecutors are often accused of misconduct by defendants and defense lawyers, such charges are rarely upheld, legal experts said.

But the accusations against Duarte were considered so serious that a judge last week cited the alleged misconduct in granting convicted murderer Kenneth Leighton a new trial. The district attorney’s office also has launched a formal investigation into Duarte’s behavior. In the past five years, just seven of the more than 1,000 lawyers in the office have been formally investigated for possible misconduct, according to Deputy Dist. Atty. Steven Sowders, who is in charge of internal investigations.

The allegations will be considered in a contempt hearing that has not yet been scheduled. His conduct allegedly violated a court order that he give unaltered statements from witnesses to the defense. The Los Angeles County Superior Court has appointed former Los Angeles Police Commission President Gerald Chaleff as special counsel and prosecutor in the contempt case. If found in contempt, Duarte faces possible jail time, fines, dismissal from his office and discipline by the state bar.

To his critics, Duarte may have done the unthinkable--become so caught up in the quest to win that he altered his law clerk’s notes of statements made by an important witness who said he heard Leighton confess. Leighton’s attorneys contend that Duarte edited out and rephrased information that they could have used to impeach the witness’ credibility.

“It’s unconscionable for someone to withhold evidence in a death penalty case,” said criminal defense lawyer Robert Armand Schwartz, a past president of the Los Angeles Criminal Courts Bar Assn. If the allegations are true, “the general feeling is that the district attorney should fire the guy. The [alleged] conduct is so egregious.”

But Duarte’s friends and supporters--among them, defense attorneys who have opposed him in court--said they can’t believe that such a misdeed could be committed by someone so diligent, hard-working and likable.

“He’s one of the nicest D.A.’s you’ll ever find,” said Danette Meyers, deputy-in-charge of the district attorney’s Florence-Firestone office downtown. “Most of our friends are very upset about [the allegations.]”

Michael Nasatir, a Santa Monica lawyer who has defended clients prosecuted by Duarte, said: “I’ve always had nothing but good experiences with Mike. He was fair, honest and an excellent lawyer.”

Other lawyers, however, describe him in less flattering terms, especially when it comes to his courtroom tactics.

“When you’re a D.A., your No. 1 priority should be justice,” said Deputy Public Defender Tamar Toister, who has clashed with Duarte over a case. “His No. 1 priority was to get a conviction.”

The youngest of 12 children of Mexican immigrant parents, Duarte grew up in a Los Angeles neighborhood where street fights and drive-by shootings were part of the landscape. He decided early on to become a prosecutor because he wanted to do “the right thing,” he said.

After graduating from Loyola Law School, Duarte joined the district attorney’s office in 1983 and rose through the ranks.

“He’s a crackerjack lawyer. He’s smooth in his delivery, he knows where he’s going and he’s prepared,” said Deputy Dist. Atty. Mark Vezzani. “He’s got a charm about him with juries. He’s believable, and that’s what we sell here.”

In 1988, Duarte was assigned to the hard-core gang unit, an elite group known for its aggressive prosecutions. By 1995, Duarte was working in the major crimes unit, whose attorneys handle the office’s highest-profile and most complicated cases.

Duarte has been promoted to the highest level that a non-management prosecutor can achieve, a position that earns the 46-year-old father of two $122,688 a year.

He said he didn’t mean to do anything wrong in the case involving Leighton and co-defendant Randall Williams, whose own jury had deadlocked. Leighton allegedly masterminded the 1998 murders in West Hills of two witnesses against him in an unrelated burglary case and enlisted Williams to carry out the killings.

The controversy centers on alterations Duarte made to notes taken by law clerk Jennifer Blair during the witness interview. Duarte said he had only tried to ensure that the information the defense received was accurate.

Duarte said he had invited Blair, who was new to the Leighton case, along for the jailhouse interview last April of witness Mark Jablonski as a favor because she had never seen one before. Duarte said he did not ask her to take notes, but she did anyway, on 11 yellow legal pad pages.

“After I saw the notes, I noticed there were misstatements in the notes, things were taken out of context. Some things I didn’t hear,” Duarte said. The prosecutor then crossed out certain passages in red ink and added others in blue ink, court documents show.

For example, Blair’s original notes contained statements from Jablonski that he first heard about the murders from Leighton and someone else named “Jeff,” and more details about the alleged confession. Duarte, however, deleted the reference to “Jeff” and some of Jablonski’s recollections of how Leighton allegedly confessed.

Duarte said he handed the edited notes to Blair and told her, “if there’s any problem with any of this, let me know.” Some time later, Blair rewrote her notes, incorporating Duarte’s changes, and Duarte turned the rewritten notes over to the defense without disclosing that they had been edited.

Duarte said that during the heat of the months-long trial, he didn’t think much more about the notes.

“You don’t know what it’s like being in a trial, all this pressure,” he added.

“You have 100 things going on. . . . This was completely unintentional,” he said. “In hindsight, of course things should have been done differently. . . . You want to turn over full and truthful statements.”

A month later, when the trial was nearly over, Blair reported what Duarte did to supervisors in the district attorney’s office. Duarte’s supervisor, Deputy Dist. Atty. Pat Dixon, then gave copies of Blair’s original notes of the Jablonski interview to defense attorneys and the court.

During jury instructions, Los Angeles County Superior Court Judge Terry Green told jurors about statements in Blair’s original notes that had been “concealed from the defense,” and that Duarte’s “concealment was without lawful justification.”

Leighton’s jury convicted him of first-degree murder. After reaching their verdict, jurors said they did not believe information concealed from the defense was very important.

But defense attorneys and Green said they believed the omitted statements could have been used to impeach Jablonski, and the prosecutor’s conduct denied the defense the opportunity to ask the witness more questions about the alleged confession.

Duarte maintains that his edited notes were accurate and that the controversy would not have erupted had his supervisor, Dixon, talked with him first and handled the issue internally rather than going straight to the judge. He blamed Dixon’s conduct on an earlier feud between the two men and alleged that Dixon once threatened to destroy his career.

Dixon denied Duarte’s allegations and said he immediately disclosed the original notes to the judge and defense attorneys because he was doing his job.

“Prosecutors are under an ethical obligation when they learn of exculpatory material [to] turn it over . . . to the defense and the court,” Dixon said.

In the Leighton case, Duarte said, the defense attorneys seemed hostile from the beginning.

“They were making it sound like [we were] hiding the ball,” Duarte said.

The defense attorneys disagree. “We kept on getting redacted notes,” said Deputy Public Defender Michael Gottlieb, who represents co-defendant Williams, who will be retried with Leighton in the next few months. “Things were whited out.”

In court, Duarte said that he had whited out misspellings and his “work product”--or an attorney’s own notes that the other side is not entitled to see.

But what particularly bothered the defense lawyers was that the revisions were done “in a manner such that upon photocopying, would be impossible for the defense to know portions had been redacted,” Deputy Alternate Public Defender Henry Hall, who represents Leighton, said in an affidavit. “In some cases, they were redacted to the point where they were useless.”

Last year, there was a controversy involving Duarte during the murder trial of Olympic boxer Henry Tillman over the undisclosed background of a prosecution witness who had been a police informant.

“He failed to disclose evidence and my client was denied a fair trial,” said Tillman’s attorney, Albert DeBlanc Jr. “His explanation was that it was an oversight.”

Duarte said that the controversy arose only because the witness had refused to testify, but then indicated he would at the last minute, catching everyone by surprise. Duarte offered not to call the witness, but Los Angeles County Superior Court Judge Steven Suzukawa still granted Tillman a new trial. Tillman later pleaded guilty to charges of attempted murder and voluntary manslaughter.

Suzukawa never found that Duarte committed prosecutorial misconduct, contrary to previous media reports, Duarte said.

In a recent interview, Suzukawa said that he did not believe what Duarte did had been intentional. He praised Duarte for being a “very good lawyer” during the Tillman trial.

Because of the Leighton controversy, Duarte is no longer arguing cases in court. He has been reassigned to an anti-truancy unit that works with schools and handles occasional misdemeanor prosecution of parents.

“It’s what I got to do,” Duarte said. “Until this is cleared up, there’s other ways to help.”