The Prosecutor, Recusal, and Issues before the California Supreme Court
LACBA Update, March 2007
By Roderick W. Leonard, a former Los Angeles deputy district attorney for 31 years now in private practice, and legal ethics expert. Leonard is a member and former chair of LACBA’s Professional Responsibility and Ethics Committee, and a past member and former chair of the State Bar’s Committee on Professional Responsibility and Conduct. The opinions expressed are his own.
Three appellate cases recently brought into focus issues of recusal of individual prosecutors and their prosecution offices. On November 22, 2006, the Second Appellate District, Division Seven filed its opinion in People v. Superior Court (Humberto S.), 145 Cal. App.4th 32, which affirmed the ruling of the trial court and found that that court had not abused its discretion in recusing prosecutors of the Los Angeles District Attorney’s Office. During the week of December 18, 2006, the California Supreme Court granted review in Hollywood v. Superior Court,1 which was the subject of the December 2006 County Bar Update article appearing in this column.2 During the same week, hearing was granted in Haraguchi v. Superior Court.3
The legal bases for determining recusal of prosecutors and prosecution offices come from a number of critical decisions. In 1977, the California Supreme Court stated in People v. Superior Court (Greer) 19 Cal.3d 255, 269 that “a trial judge may exercise its power to disqualify a district attorney from participating in the prosecution of a criminal charge when the judge determines that the attorney suffers from a conflict of interest which might prejudice him against the accused and thereby affect, or appear to affect, his ability to impartially perform discretionary functions of his office.” (Id. at 269.)
In 1980, Penal Code Section 1424 was enacted and states in pertinent part that disqualification of a district attorney or a city attorney performing an authorized duty involving a criminal matter “may not be granted unless the evidence shows that the conflict of interest exists that would render it unlikely that the defendant would receive a fair trial.”
In 1996, in People v. Eubanks (1996) 14 Cal.4th 580, the supreme court stated that the enactment of Penal Code Section 1424 eliminated the appearance of impropriety as an independent ground for prosecutorial disqualification. (Id. at 592.) Prosecutorial recusal is to be analyzed by a two-prong test: first, the determination of the existence of a conflict, the likelihood of which is real and not merely apparent, (Id.), and second, “whether the conflict is so grave as to make fair treatment of the defendant unlikely if the district attorney is not recused.” (Id. at 598.)
The present standard of appellate review of a trial court ruling in respect to recusal is abuse of discretion. (People v. Superior Court (Humberto S.), supra.)
Disqualification can be either individual to the specific prosecutor or result in recusal of the entire prosecution office.
Recusal of the entire prosecution office was upheld by appellate courts in the following situations:
Where the disabling conflict is office-pervasive. (People v. Eubanks, supra, where the prosecution office accepted payments from the corporate victim. See, however, Hambarian v. Superior Court (People) (2002) 27 Cal.4th 826, affirming the order of the superior court declining to disqualify the Orange County District Attorney’s Office, which had accepted the services of a forensic accountant compensated by the victim, the City of Orange.)
Where the conflicted prosecutor is a high-ranking administrator in the prosecution office and apparently where effective screening is not possible. (Younger v. Superior Court (Warren) (1978) 77 Cal. App.3d 892, where the court based its recusal order on the fact that Warren was represented by the law firm of Atkins, Evans & Wagner, successor law firm to Cochran, Atkins & Evans, and Johnnie L. Cochran Jr. had been appointed the Assistant District Attorney of Los Angeles County. Note that Younger predates the enactment of Penal Code Section 1424 and speaks in terms of appearances of impropriety, (Id. at 897), a standard that has been rejected as the basis for recusal. (People v. Merritt (1993) 19 Cal.App.4th 1573, 1581.))
Disqualification of the entire prosecution office may be prevented by effective screening between the conflict-tainted prosecutor and the remainder of the office. (See People v. Lopez (1984) 155 Cal.App.3d 813, where the prosecutor who joined the prosecution office had represented the defendant before his trial. The motion to recuse the prosecution office was denied. The opinion states “[n]otwithstanding the probable intimacy of the 10-person DA’s office, there was no suggestion or evidence that any leak in the wall of silence between Smith and his colleagues had occurred or would occur.” (Id. at 827).)
Individual prosecutors have been disqualified where there is a disabling relationship between the individual prosecutor and defendant. (See, for example, Millsap v. Superior Court (1999) 70 Cal.App.4th 196, where the individual prosecutors trying the defendant became target victims solicited for murder by the defendant.)
In People v. Superior Court (Humberto S.), supra, the appellate court affirmed the order recusing specific prosecutors. The matter arose where, in a series of pretrial motions in a juvenile matter, prosecutors sought to prevent defense access to the alleged victim’s medical and psychotherapy records. In affirming the recusal order, the appellate opinion states “[i]n this case, the conflict arose when the prosecution sought to present third-party interests in a juvenile delinquency proceeding.”
Last year, the California Supreme Court held in People v. Vasquez (2006) 39 Cal.4th 47, that not all erroneous denials under Penal Code Section 1424 result in due process violations. (Id. at 51.) Defendant Vasquez was charged with murder. At the time of trial, Vasquez’s mother had been an administrator in the Los Angeles County District Attorney’s Office. Her husband, Vasquez’s stepfather, had been a deputy district attorney. The trial court’s failure to disqualify the prosecutor was error but was not prejudicial under the standard of People v. Watson (1956) 46 Cal.2d 818. (Id. at 51.)
The supreme court may address whether to change the standard of review with respect to recusal from abuse of discretion to independent review. (See endnotes 1 and 3.) Appellate courts often have been deferential to the rulings of trial courts in regard to recusal rulings based on the application of the abuse of discretion standard. (See, for example, People v. Eubanks, supra, affirming recusal, and Hambarian v. Superior Court (People), supra, affirming no recusal, in applying the abuse of discretion standard.) A change to an independent review standard can open a broad appellate vista.
The supreme court may determine the extent to which the individual conduct of the prosecutor in Hollywood impacted on the disqualification of the entire prosecution office. (See endnote 1.) A ruling disqualifying the prosecution office for the conduct of the individual prosecutor will require prosecution offices to become vigilant and active about monitoring individual prosecutor actions.
1 The California Supreme Court Web site “Summary of Cases Accepted During the Week of December 18, 2006” states: “Hollywood v. Superior Court S147954 (B188550; 143 Cal. App.4th 858; Santa Barbara County Superior Court 1014465.) Petition for review after the Court of Appeal granted in part and denied in part a petition for peremptory writ of mandate. This case presents the following issues: (1) Was the trial court’s ruling on a motion for recusal alleging conflict of interest, because the prosecutor had cooperated with filmmakers planning a picture based on this case, subject to independent review or reviewable only for abuse of discretion? (2) Was recusal appropriate under either standard? (3) If recusal was required, was it error not to recuse the entire district attorney’s office?”
2 Jeremiah Reynolds, “Hollywood Lesson on Cooperation vs. Conflict of Interest,” County Bar Update, (L.A. County B. Ass’n, Los Angeles, Cal.), Dec. 2006.
3 The California Supreme Court Web site “Summary of Cases Accepted During the Week of December 18, 2006” states: “Haraguichi v. Superior Court, S148207 (B191161; 143 Cal. App.4th 846, mod. 144 Cal. App.4th 5891; Santa Barbara County Superior Court; 1203536.) Review on the court’s own motion after the Court of Appeal granted in part and denied in part a petition for peremptory writ of mandate. This case presents the following issues: (1) Was the trial court’s ruling on the motion for recusal alleging conflict of interest, because the prosecutor had written a novel allegedly based in part on the facts of this case, subject to independent review or reviewable only for abuse of discretion? (2) Was recusal appropriate under either standard?”