Saturday, December 4, 2010

85th Installment. California State Bar gives prosecutors free pass: From Philip Cline to Melanie J. Lawrence

kanBARoo court differs from most other judicial-system criticisms in declining to demand more prosecutions. Often critics respond to inequities in justice's administration by demanding prosecutions of the truly guilty, not just relief for the unjustly prosecuted. No doubt, one might derive satisfaction from reporting judges or gloating over their comeuppance, but this satisfaction comes at the expense of consistency and principle: advocacy of prosecution by a corrupt, oppressive, or incompetent agency contradicts the intended defense of due process. Only perpetration of crimes so great they overshadow the State Bar's defects—John Yoo is the only example that comes to mind—justifies supporting (never advocating!) state-bar prosecutions. kanBARoo court doesn't advocate prosecution even in the extreme case of Ronald N. Gottschalk or Melanie J. Lawrence. Nor did I report Lawrence's criminal misconduct to the State Bar as some advised; I refused even to report Kim and company to the police, as the state's prosecutorial authority differs from that of the state bar in its greater competence, not greater inclination to justice. Principled opponents of authoritarian oppression don't beseech the oppressive authorities!

Therefore, readers shouldn't interpret the following critique of failure to prosecute prosecutors as a demand for their prosecution. To avoid the misunderstanding of an important principle, I emphasize this caveat, even at the expense of the main message; but principles don't preclude publicizing and analyzing failures to prosecute, omissions laying bare the state-bars' mainsprings. With that caveat, I proceed with clear conscience to describe the California State Bar's astounding failure to prosecute prosecutors

Recently, the Northern California Innocence Project released a study of prosecutor misconduct staggering in demonstrating prosecutory bias. One fact stands out in this report: over the past decade, the State Bar has disciplined only six prosecutors for misconduct in prosecution. (Hat Tip to The Crime Report.) Business & Professions Code sections 6086.7 and 6086.8, subdivision (a), require judges to report misconduct that affects trial outcome, and mandatory "reported events" by judges produced approximately one thousand reports over the period studied, but of these, only six led to state-bar sanctions of prosecutors in criminal cases. For most practical purposes, we can justly say the California State Bar refuses to prosecute any prosecutor. (The only exception is the recent prosecution of four prosecutors, comprising the bulk of the six. This prosecution resulted from a power-struggle within the state bar that led to Chief Trial Counsel Scott Drexel's ouster and represented a crude attempt to appease the discontented state-bar defense establishment.)

The Mark Sodersten case shows how this refusal plays out, how the free pass given prosecutors is intentional rather than (somehow) merely negligent. Sodersten is one of the great success stories of the Northern California Innocence Project, which seeks exoneration for victims of the criminal-justice system who didn't commit the crimes charged. The California Court of Appeal freed Sodersten based on evidence the Innocence Project discovered proving he was the victim of withholding evidence by the prosecutor, who himself had interviewed the potentially exonerating witness, so there was no legitimate question about the concealment's willfulness. This prosecutor was a real fiend; can you imagine asking for the death penalty for a defendant who you know was convicted on falsified evidence? Since the evidence was exonerating, one can go so far as to say this prosecutor demanded the death penalty for someone he knew was innocent.
The California State Bar couldn't avoid opening an investigation of Philip Cline, then a Tulare County assistant district attorney, but it refused to find culpability, claiming insufficiency of evidence, a deficiency deterring the State Bar in no other prosecution. The free pass allowed this prosecutor to flourish: this attempted murderer is now district attorney for Tulare County.

Sodersten shows the California State Bar isn't merely lax about prosecuting prosecutors but actively resists finding prosecutors guilty. Opponents of the State Bar establishment have an interest in knowing why. One theory, advanced by the loyal opposition of the California State Bar establishment, the Association of Discipline Defense Counsel and its leader, David Cameron Carr. Carr, claims that the state bar is really a consumer-protection agency rather than an enforcer of ethical principles, implying that the disciplinary mechanism within government agencies adequately protects the public. The theory can't explain the intensity of resistance to prosecuting prosecutors; it explains at most a lack of emphasis on such prosecutions. Carr would have it that the State Bar doesn't consider prosecutorial misconduct important enough to prosecute, a premise that doesn't explain outright refusal to prosecute. The data also refute a theory I proposed, that the State Bar is unconcerned with prosecuting "government attorneys" because there's no money in it, the State Bar having an interest in the trust accounts of civil attorneys, as it retains the interest on these accounts. This too explains only lack of concern, not determined avoidance.

"Government lawyers" is a misleading abstraction. I haven't seen figures on prosecutions of other "government attorneys;" the record concerning public defenders would be particularly interesting. But even if the prosecution rates are low across the board for lawyers working for government, this 1) still doesn't explain active resistance to prosecution of prosecutors; and 2) doesn't explain why common sense and the obvious need for discipline for misconduct of the sort Philip Cline perpetrated doesn't compel making an exception to any rule exempting "government lawyers," since the imperatives that apply to prosecutors don't apply to other classes of "government lawyers." An unethical monster like Philip Cline is a moral threat whether or not he leaves government service. No client should trust such a creature; none should have to risk association with him.

Prosecutorial solidarity is the only tenable explanation I find for the State Bar's avid refusal to prosecute prosecutors. The State Bar, after all, effectively is composed of prosecutors, and the boundary between prosecutors in general criminal practice and State Bar "trial counsel" is porous, the State Bar the refuge of the most incompetent of the lot, not necessarily the most vile. The prosecutors in the State Bar have a stake in not seeing other prosecutors prosecuted because, in general, prosecutors often engage in misconduct, particularly State Bar prosecutors. While the State Bar has no shortage of hypocrisy, it knows its self-interest. Once prosecution of prosecutors becomes common, why wouldn't a public outcry demand prosecution of "trial counsel"? By all indications, serious misconduct by these bar prosecutors is a common occurrence, even the norm. Every prosecutor has an interest in such misconduct getting a free pass.

The evidence of State Bar misconduct is rife throughout its cases, but the most rigorously proven instance happens to have occurred in my State Bar case, where "deputy trial counsel" Melanie J. Lawrence actually destroyed documents to obtain dismissal of my petition for review. Precisely because the evidence is circumstantial, hence not dependent on testimony, the proof of her misconduct is airtight. Readers can verify this tolerance for misconduct by bar counsel all the way from the nefarious Judge Honn to an indifferent California Supreme Court. Lawrence and the attorneys representing the state bar consistently refused to address the charges of misconduct; with proof so clear, they determined to stonewall. While my briefs pounded away on the subject, the State Bar's briefs ignored my allegations. They needed to craft no arguments; they simply pretended my claims were absent. Subsequently, no investigation was opened, despite the proof I briefed.

While Philip Cline is district attorney of Tulare County, Melanie J. Lawrence continues in employment by the State Bar. The State Bar doesn't prosecute prosecutors for misconduct because, out of self-interest and empathy, it favors such misconduct.