Unlawful Fiction?

High Court to Hear Local DAs

by Martha Sadler

The California Supreme Court will hear
two legally separate but thematically related cases involving two
veteran prosecutors from the Santa Barbara County District
Attorney’s office. In each instance, a lower court has ruled in
favor of the criminal defendants who are demanding that the deputy
district attorneys assigned to their cases be disqualified because
the attorneys have used the defendants’ stories in works of popular
fiction. Deputy District Attorney Joyce Dudley published
Intoxicating Agent, a novel based on rape charges leveled against
Massey Haruchi Haraguchi, while

The court also said that prosecutors in death penalty cases,
such as Jesse James Hollywood’s, must be held to the highest
standards of behavior.

Deputy District Attorney Ron Zonen consulted with producers of a
movie based on the murder of which Jesse James Hollywood stands
accused. Hollywood has yet to be tried, but the movie, Alpha Dog,
is scheduled for release this month. In October, the 2nd District
Court of Appeal, Division 6, ruled that the defendants were
unlikely to receive fair trials at the hands of these prosecutors
and ordered the prosecutors recused from the cases.

Instead of merely reassigning the cases to different attorneys,
the DA’s office is fighting for the honor of its prosecutors. The
Court of Appeal overstepped its authority, according to DDA Gerald
Franklin, a colleague of Zonen and Dudley, who is handling the
appeals work. In reviewing requests for recusal, courts of appeal
usually defer to the judgment of local courts which know the
characters of the lawyers involved. Instead, Franklin said, in
Zonen and Dudley’s cases, the appeal justices simply ignored the
local court’s judgment and substituted their own.

In its ruling, the Court of Appeal
stated that the lower court had “no precedent to guide it” in these
“unusual” cases and opined that cases should not be tried in the
popular media. The court also said that prosecutors in death
penalty cases, such as Hollywood’s, must be held to the highest
standards of behavior. (Zonen has admitted to improperly turning
over his files to the moviemakers as part of an effort to capture
Hollywood, who was then a fugitive.)

Both sides in the Hollywood case appealed the Court of Appeal
decision, though for different reasons. While the DA’s office has
stated that the Court of Appeal should not have recused Zonen,
Hollywood’s attorneys want the entire DA’s office recused from the
case. James Blatt, Hollywood’s attorney, argued that the rest of
the office must have been aware of Zonen’s activities, and
therefore the other prosecutors share Zonen’s willingness to treat
Hollywood unfairly. The Supreme Court has agreed to hear both
appeals. In addition, the Supreme Court decided to hear the
Haraguchi case as well, even though neither side had appealed that
ruling.

According to Franklin, the standard for recusal is very simple:
A prosecutor should be removed from a case if he or she has a
conflict of interest so severe that the defendant is unlikely to
receive a fair trial. In the Hollywood case, Superior Court Judge
Brian Hill ruled that Zonen did not have a conflict of interest.
Franklin said that although the Court of Appeal’s job was to
determine whether Judge Hill “abused his discretion” in reaching
that decision, it instead ignored this function and started
creating new standards for its judgment. Zonen’s actions might make
him subject to disciplinary action, Franklin acknowledged. However,
the Court of Appeal did not discuss whether what it termed Zonen’s
“overzealousness” constituted a conflict of interest. “The Court of
Appeal ruling in this case,” Franklin wrote in his petition to the
Supreme Court, “announced a new, subjective, entirely
self-executing and quite breathtaking test. … A prosecutor may be
recused if the reviewing court itself disapproves of the
prosecutor’s conduct prior to trial, and … simply to eliminate any
basis for an argument on further appeal.”

Franklin maintained that these two cases are not so unusual that
the Court of Appeal must make new standards to apply to them,
insisting that enough precedent exists. “The reviewing court’s
apparent belief that the trial court was confronted by an issue
that required something other than a routine exercise of discretion
is mistaken,” Franklin said.