Consider an agency that has 184,778 active members. The association of attorneys who have joined forces and created their own Association of Discipline Counsel consists of only 26 members. In additional, consider that most of the 26 members of the Association of Discipline Counsel were former prosecutors. They aren’t likely to put a full court press on their former allies in the Office of Chief Trial Counsel. They have the members of the State Bar at their mercy, all of whom are very committed to retaining their licenses and reputations. They set the fees, mostly outrageous fees. The minimum fee for a 2-3 day trial at State Bar Court is $25,000. Most criminal defense attorneys who try cases involving the freedom of their clients do not garner those fees. The State Bar would consider such price gouging as unethical. And who oversees unethical prosecutors at the State Bar? No one. Why are state court prosecutors getting away with unethical practices that destroy people’s lives? Because the State Bar Office of Chief Trial Counsel almost never prosecutes prosecutors. Justice Alex Kozinski of the 9th United States Court of Appeals recently weighed in on this: “Defense lawyers who are found to have been ineffective regularly find their names plastered into judicial opinions, yet judges seem strangely reluctant to name names when it comes to misbehaving prosecutors. Indeed, judges seem reluctant to even suspect prosecutors of improper behavior, as if they were somehow beyond suspicion….Naming names and taking prosecutors to task for misbehavior can have magical qualities in assuring compliance with constitutional rights. “If judges have reason to believe that witnesses, especially police officers or government informants, testify falsely, they must refer the matter for prosecution. If they become aware of widespread misconduct in the investigation and prosecution of criminal cases, a referral to the U.S. Department of Justice for a civil rights violation might well be appropriate.” And so it goes. Judges do not forward complaints to the State Bar against prosecutors. Time and time again we see campaign slogans for judges running for re-election. The slogan I see most frequently is “Law Enforcement’s Choice.” That means they are beholden to prosecutors, and they are not ashamed to admit it. And so we have dirty prosecutors getting away with, sometimes, murder. Mostly, they get away with withholding evidence or lying to judges. Judges running who have historically run on “Law Enforcement’s Choice” choice tickets won’t refer prosecutors to the State Bar because the retaliation they might see against them at their next election would be devastating to their ability to keep their jobs. Criminal defense lawyers and small firms are historically targeted by The Office of Chief Trial Counsel. Perhaps because the career prosecutors who have mostly never seen the inside of a real courtroom, and who are not required to present their cases according to the rules of evidence, know they would be out monied and out gunned by big firms that could bury them in paper and discovery. Most solo practitioners and small firms cannot fund something that massive. And what about rogue State Bar prosecutors? The adage, “Absolute power corrupts” is in play at the California State Bar. it has been written extensively that State Bar prosecutors historically overcharge cases. Take prosecutor Kimberly Anderson who, for five long years, tortured attorney Nicholas Debiase. Mr. Debiase was charged with failing to keep his membership records up to date. She accused him of moral turpitude for sending out two letters while he was inactive. She got her conviction for moral turpitude. The trial judge simply rubber stamped what she said and destroyed Debiase’s livelihood and reputation. Debiase suffered through the long and winding road of the State Bar court system. In a rare turn around of events (State Bar defense counsel Art Margolis has stated in a declaration that the State Bar judges rubber stamp the prosecutor’s allegations, and the State Bar Review Court rubber stamps the trial court’s decision), the State Bar review department reversed the Debiase clearly stating that he had committed no acts of moral turpitude. That took five long, torturous, years. This was prosecutorial misconduct at its worst. Anderson, well known as one of the most unfeeling prosecutors in the State Bar system, had used her power to harm another person. Was she so myopic that she didn’t know the attorney had not committed misconduct, much less conduct amounting to moral turpitude? Whether she was simply a completely ignorant attorney, or she wilfully filed charges she knew were unwarranted, the answer is the same. She had no business prosecuting even another case. And here is where the problem with corruption continues. What happens when a State Bar prosecutor commits misconduct? The answer is nothing. No matter what the answer, she should have been removed from her position right then. Debiase was a victim of a sick system gone wrong; where no sanctions can be had against prosecutorial misconduct.
July 13, 2015