Just Name Prosecutors Who Commit Misconduct

[Update: This blog item inspired a front-page story in The Recorder, available at Callaw.com.]

What is it about California’s appellate courts omitting the names of prosecutors from their rulings, particularly if they stand accused of committing misconduct?

It happened once again on Tuesday, when San Jose’s Sixth District Court of Appeal left the name of a former Santa Cruz County deputy district attorney out of a 27-page ruling that found he had acted irresponsibly during closing arguments of a DUI and drug possession case.

Justice Richard McAdams, in an unpublished ruling (.pdf) in People v. Gomez, H028380, used the word “prosecutor” 44 times in labeling the deputy DA in the case, but never came right out and identified him as Gordon Isen.

It took calls and e-mails to San Francisco-based Deputy Attorney General Christopher Wei, representing the People on appeal, and Mountain View lawyer Joanne Madden, defending Cesar Gomez, to find out Isen was the man. Isen is no longer with the Santa Cruz County DA’s office.

To be blunt, appellate justices often omit the names of misbehaving prosecutors from their written rulings. And to what purpose?

Just two months ago, Los Angeles’ Second District in a 10-page ruling referred to “the prosecutor” 22 times — four in the dissent alone — rather than name L.A. County Deputy DA Darci Johnson. The court found (.pdf) that Johnson had committed misconduct during closing arguments by improperly linking a Catholic priest accused of molesting three young boys with church sex scandals worldwide.

That case, People v. Lopez, S143615, was granted review by the California Supreme Court on Wednesday.

Perhaps justices feel they’re protecting the dignity or the privacy of the prosecutors they’re chastising. But it feels more at times that they’re closing ranks to protect one of their own.

After all, these are public opinions and the public is entitled to knowing who these errant lawyers are without having to jump hurdles to find out. On top of that, state Business and Professions Code §6086.7(a) requires judges — and justices presumably — to notify the State Bar whenever a judgment is based “in whole or in part on the misconduct, incompetent representation or willful representation of an attorney.”

Morever, in the Gomez case, the Sixth District had no compunction naming Halle Weingarten, the expert witness the justices claim Isen unjustly maligned during cross-examination. If Weingarten’s name can be published and associated with smears, why not Isen’s?

True, some courts readily name attorneys — even prosecutors — who overstep their bounds. In May, Riverside’s Fourth District came down on Riverside County Deputy DA Kelton Tobler by name for committing misconduct by bargaining with the defendant in People v. R.T.P., 06 C.D.O.S. 4288, outside the presence of his lawyer.

And in April, Sacramento’s Third District ripped into Sacramento lawyer Julie Wolff in In re S.C., 06 C.D.O.S. 2909, for making gratuitous remarks about the trial judge, filing a “rambling and ranting” 202-page appellate brief and referring to her client’s developmentally disabled child as “more akin to broccoli.”

Too frequently, though, appellate justices leave attorneys’ names out for no apparent rhyme or reason.

Mike McKee


3 Responses to “Just Name Prosecutors Who Commit Misconduct”

  1. Grace Suarez Says:

    Thank you! I have ranted about this for years. It’s a widespread practice: defense counsel, witnesses, etc. are named, defense counsel are regularly referred to the State Bar. Have we seen one decision this year referring a prosecutor to the State Bar? No. (See P v. Shazier (H028674); P v. R.T.P. (E036355) (prosecutor named but not referred).

    Your comment deserves a full article.

  2. FELIX TORRES, JR. Says:


  3. Legal Pad » Blog Archive » Yet Another Screwup Prosecutor Goes Unnamed Says:

    […] They’re still at it — appeal court justices, that is, who don’t name misbehaving prosecutors in court rulings. […]

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