Changing an office's culture

In San Diego County, prosecutors have tried to do the right thing—but haven't always succeeded

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Since 1970, appellate judges ruled on allegations of prosecutorial error or misconduct allegations in 45 San Diego County cases, of which 8 led to reversals, dismissals or acquittals. As in other jurisdictions studied by the Center for Public Integrity, the totals come solely from appellate opinions. San Diego County defense lawyers provided numerous examples of error or misconduct at the pre-trial or trial stage.

But San Diego stands out amidst the 2,341 jurisdictions the Center researched for its attempts over the last 30 years to do things differently—in part because the office of district attorney has been held by prosecutors who have attempted to make the office more accountable. Perhaps a reflection of their success lies in this fact: the citizenry of San Diego County became so educated about prosecutorial misconduct that when it did occur, they were ready to hold the district attorney responsible and vote him out of office, no matter his accomplishments or intentions.

The changes began with the election in 1970 of Edwin L. Miller Jr., who would go on to serve for 24 years. During his tenure, Miller made drastic changes to the office, in part by stressing specialization and career ladders. He encouraged young trial prosecutors who showed talent to stay on permanently, thus solidifying the culture at the top. He introduced some reforms—notably the compilation of an office manual for prosecutors, and the publication of a journal, Law Enforcement Quarterly, first published by the San Diego District Attorney's office in 1971. (Originally a specialized journal for legal professionals, in 1989 it became a more approachable magazine for general readers.)

Miller built a national reputation as an honest, reform-minded public official. True, there were instances of misconduct among the career prosecutors who worked for him. In a 1976 murder trial, L. Forrest Price, then an 11-year veteran prosecutor hired by Miller's predecessor, withheld a document from the defense that contradicted a witness' testimony. Unbeknownst to Price, defense counsel got a copy of the document from the witness himself; later, Price supplied a doctored version. Jurors, unaware of the failure to disclose or the alteration, found the defendant guilty. Before sentencing, Price quietly offered a deal directly to the defendant—if he would refrain from appealing, perhaps a favorable sentence would result. Defense counsel knew nothing about the offer. In any event, the deal fell through.

Ultimately, Price's behavior was exposed and the California attorney general charged him with a felony. After a jury acquitted him, Price sought reinstatement to his position. The civil service commission ruled in Price's favor. But Miller was opposed and refused to reinstate him.

Such instances did little to tarnish Miller's reputation. In four of his reelection campaigns, he ran unopposed, and he won plaudits from his fellow prosecutors nationwide.

All that changed with the case of Dale Akiki.

Near what turned out to be the end of Miller's tenure, the prosecution of the developmentally disabled Akiki for allegedly molesting youngsters at a church day care center fell apart in the courtroom. There was no physical evidence in the case, which rested largely on testimony from children. Lawyers inside and outside the office warned Miller that he was making a mistake by taking the case to trial. But Miller and several deputies pushed ahead. Despite weeks of testimony from children about Akiki's depredations, the jury acquitted him in less than a day. Later, Akiki won a large financial settlement from San Diego County for wrongful prosecution.

Miller acknowledged responsibility for the case, and promised changes in the way the office handled allegations of child molestation. In the 1994 election, his opponents made an issue of the case. In a primary field of five candidates, Miller placed fourth, ending his tenure as San Diego's district attorney. Paul J. Pfingst, a trial prosecutor hired by Miller who had since entered private practice, mounted an electoral challenge to his former boss, and won.

Miller felt dismay and anger that decades of what he considered exemplary service seemed forgotten because of one case that, while admittedly problematic given the difficulties connected with pre-school witnesses, appeared solid to him and his trial prosecutor. He disputed the notion that prosecutorial misconduct was something to worry about in San Diego County. The only instance of unambiguous misconduct he encountered, he said, involved L. Forrest Price, and he had moved quickly to fire Price.

Still, other instances of misconduct under Miller's reign would surface after his departure and plague his successor. The most significant were against James M. V. Fitzpatrick, a prosecutor in the office's gang unit and a hire of Miller's. In 1997, for example, a California appeals court vacated a murder conviction Fitzpatrick had obtained against Jemal M. Kasim in connection with a 1989 shooting. During an evidentiary hearing, it emerged that Fitzpatrick had allegedly intervened with the Immigration and Naturalization Service on behalf of one of his witnesses. The court learned about the intervention not because of any disclosure by Fitzpatrick, but because an INS lawyer came forward.

While the Kasim case played out, another of Fitzpatrick's convictions was reversed when a trial judge found that the prosecutor had misled defense counsel. Soon after the two cases, the San Diego County Civil Service Commission recommended that Fitzpatrick be fired, and Pfingst, who by that time had taken over for Miller as district attorney, cut him loose.

Pfingst continued to improve the image of the prosecutor's office. In the late 1990s, he and his staff initiated post-conviction DNA reviews of 766 pre-1992 cases. Before that year, DNA testing was normally unavailable or, if available, too primitive to be relied upon. George (Woody) Clarke and Lisa Weinreb, deputy district attorneys, took charge of the effort, which has since been emulated by prosecutors' offices across the nation. The results have not been dramatic. Case reviews have led to the realization that either no testable DNA exists or that testing will fail to produce a certain answer of innocence or guilt. Still, the effort is playing a role, however small thus far, in guarding against the San Diego County district attorney being complicit in the long-term incarceration of an innocent defendant.

Pfingst improved upon Miller's office manual. The thick loose leaf notebook, called the "Legal Policies Guide," was researched and written by about two dozen lawyers in the office. It opens with a chapter on "crime charging," which discusses when to issue a case as a felony, when as a misdemeanor, for 20 different types of crimes. The second chapter focuses on two types of crimes, homicides and sexual assaults. The remaining chapters examine the operations of special teams within the office; disposing of felonies and misdemeanors; using subpoenas wisely; what must be disclosed to the defense in a process called "discovery"; victim and witness issues; pre-trial preliminary hearing procedures; grand juries; trial conduct; writs; appeals; and a collection of directives on specific additional matters going back to 1995.

Pfingst also allowed television producers to follow trial prosecutors on their rounds, gathering footage for the NBC-TV show "Crime and Punishment." The show aired for 13 Sunday nights during summer 2002. Without question, the show contributed to educating the general citizenry about the criminal justice system. And Pfingst made Miller's Law Enforcement Quarterly publication available on the Internet.

Amidst the reforms and improvements, the appearance of prosecutorial error and misconduct seemed surprising with Pfingst at the helm, just as it had during Miller's tenure. But, just as one instance would start fading from memory, another would arise. Additional questionable conduct by gang unit prosecutors that occurred during Miller's tenure surfaced publicly after Pfingst succeeded him—once again casting a shadow on the two men's considerable accomplishments.

Much of the controversy swirled around prosecutor Keith Burt, Fitzpatrick's supervisor, during proceedings against multiple defendants charged with murdering a police officer during 1988. A 1991 trial of one defendant ended with a deadlocked jury. Later the same year, the prosecution persuaded a grand jury to re-indict that defendant, along with five other men. Burt relied heavily on the testimony of a gang member turned informant. The jury eventually convicted three defendants of conspiracy and murder, one defendant of conspiracy only. The jury failed to reach unanimity on a fifth defendant's fate, and acquitted the sixth.

As the appeals progressed, the trial judge, troubled by what he had seen and heard, asked the state attorney general to investigate the prosecutor. Reports emerged that Burt allowed his informant, imprisoned for a crime other than the murder of the police officer, to engage in sexual intercourse while visiting the prosecutor's office. The trial judge opened an evidentiary hearing during 1998; he heard from 52 witnesses and examined hundreds of exhibits. The judge eventually recommended the convictions be reversed because of the prosecutor's conduct.

An appellate court weighed in by officially overturning the convictions. If any retrials were to occur, they would be handled by the attorney general, not Pfingst's prosecutors. Eventually, the attorney general decided against re-trials. In an extraordinary admission, the attorney general told the court, "The fact is, not one of these defendants has ever been proven to be the person who shot Officer Hartless. The district attorney could not establish this fact in two trials, and the attorney general cannot do so now." Pfingst's office issued a statement: "I'm not sure we would make the same decision, but it's [the attorney general's] decision, one honestly reached, and it deserves to be respected."

Unlike Fitzpatrick, Burt kept his prosecutor's position, though he eventually accepted a demotion within the office.

Another blow to Pfingst came in 2002 when, as he sought re-election, an appellate court made a finding of misconduct by one of his prosecutors. The ruling was not the only sign of trouble for Pfingst—about two-thirds of his deputies publicly opposed his re-election, citing his management style. Pfingst blamed the inability of the prosecutors to win pay raises from the county for their opposition, and said such matters had little to do with him. The complaints of those he supervised combined with the misconduct ruling dimmed his chances for winning another term.

The ruling involved John Lewis Tolliver's robbery-assault trial. Tolliver appealed, alleging misconduct by trial prosecutor Sophia Roach, who had been hired during Pfingst's tenure, as well as ineffectiveness by his defense counsel for failure to object to the purported misconduct.

Roach had said to the alibi witness, "You're pretty uncomfortable up there right now, aren't you?" The witness replied, "I'm fine," at which point Roach countered, "Does it make you nervous when you lie in front of the jury? Does it? No? It's easy to lie to the jury?" At one point during the trial, the judge called Roach to the bench, telling her, "You're so close to a mistrial. Do you have any idea?" Roach apologized to the judge, who in turn told the jury to disregard the prosecutor's previous question because it was "totally improper." The judge intervened at other junctures, especially because Tolliver's defense lawyer was not objecting.

The appellate judges overturned Tolliver's conviction, commenting "The prosecutor called Tolliver's alibi witness ... a liar while the witness was on the stand, and suggested to the jury that the witness was comfortable lying to them."

In an interview with the Center, Roach said the Tolliver case was the first felony reversal she had experienced during five years as a trial prosecutor. "It's so hard to think of anybody thinking of me as unethical," Roach said. Her immediate reaction to the appellate opinion was "shock," followed by "disappointment." She said she expects the ruling to "have a devastating and lasting effect."

As a result of the reversal, Roach and her colleagues in the San Diego County office received new instruction on what kinds of questions they can ask during cross-examination.

Pfingst also received bad publicity for a prosecution in a high profile case that collapsed before it reached the courtroom. San Diego County prosecutors charged a 14-year-old boy with the murder of his 12-year-old sister in their home, despite the lack of physical evidence, as well the existence of evidence that pointed to a different suspect. Defense counsel for the boy eventually forced DNA testing which placed the other suspect—a drifter with no connection to the family—in proximity to the victim. The case against the victim's brother evaporated before trial. Given its poor performance, Pfingst's office lost jurisdiction of the case to the state attorney general's prosecutors.

The conduct of the San Diego County district attorney's office in the case became material for lots of unflattering media headlines, which overshadowed Pfingst's accomplishments. At the beginning of 2003, Pfingst handed over his district attorney title to challenger Bonnie Dumanis.

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