Monday, October 9, 2006
A California appellate court has ruled that a prosecutor cannot represent the people in a case if that case's facts and issues closely resemble a book she has written and is promoting at the same time. In Haraguchi v. Superior Court of Santa Barbara County, the petitioner requested that the deputy district attorney, Joyce Dudley, recuse herself because "`Dudley has a conflict of interest based on the fact that she is prosecuting petitioner in a rape by intoxication case at the same time she is promoting a self-published novel about a rape by intoxication case which includes details from petitioner's case.'" Said the court, "`We will grant the petition as to Dudley with the hope that this case of first impression will make a case of lasting impression.'"
Both the prosecutor-novelist and her protagonist have names with the initials J.D. "In his recusal motion, petitioner alleged: `[Dudley's] book contains a lengthy fictional account of a rape by intoxicating agent. Just like [petitioner's] trial, [the] Deputy D.A. arranged for the fictional trial to begin in April 2006. These and other coincidences lead [petitioner] to fear that the lines between fact an[d] fiction have been obscured by the publication of the book, and that the District Attorney's obligation to exercise discretion and seek justice impartially is now compromised by her financial and emotional interests in promoting her book. In support of the recusal motion, petitioner's counsel declared that, in her novel, Dudley had `incorporated facts of the real District Attorney's investgiation of [petitioner's] case...'...Petitioner's counsel declared that Dudley `has been promoting the book throughout the county of Santa Barbara.'...
"At the hearing on the recusal motion the trial court ruled...`[I]t doesn't appear to me as though there is a conflict that would justify recusal....The publication of her book appears to be coincidental to [petitioner's] circumstances. The circumstances related...factually don't appear to related to [petitioner's] circumstances....If there were any potential conflict, there could not be recusal unless that conflict was so grave as to render it unlikely that the defendant would receive a fair trial, and I don't think there's any evidence of that. It has not been demonstrated or established that any publicity related to Ms. Dudley's book has been so extensive or interlinked with [petitioner's] case that he would be unlikely to receive a fair trial.' It's noted that [petitioner] may have a physical resemblance to a character in the book...who happens not to have been the perpetrator of the crime in the book, and that certainly, in my view, doesn't implicate any prejudice to [petitioner's] right to a fair trial.'"
The court then examined section 1424, which sets forth the standards for recusal. "`...[S]section 1424 should be read `as establishing a two-art test: (i)is there a conflict of interest? and (ii)is the conflict so severe as to disqualify the district attorney from acting? Thus, while a `conflict' exists whenever there is a `reasonable possibility that the DA's office may not exercise its discretionary function in an evenhanded manner,' the conflict is disabling only if it is `so grave as to render it unlikely that defendant will receive fair treatment.'
"We cannot affirm the trial court's ruling on the deferential standard of appellate review. This is a first impression case...As we shall explain, here, as a matter of law, the trial court was required to recuse Dudley as the trial prosecutor....Dudley cannot be recused merely because her further participation in the prosecution...would be unseemly. She can be recused only if she suffers from a disabling conflict of interest. Nevertheless...before discussing the conflict issue we explain why Dudley's further prosecution of petitioner would be unseemly....Although her novel and petitioner's case have differences in their facts, enough similarities exist to suggest that Dudley is relying on petitioner's case for plot lines. Dudley is using her official position to obtain personal financial gain. Her connection with the Santa Barbara County District Attorney's Office is a major selling point for the book. The front cover shows a file with the heading, "Santa Barbara County District Attorney File." The back cover states Joyce Dudley is a Senior Deputy District Attorney for Santa Barbara County. She specializes in: sexual assault crimes, crimes against children, murder, and hate crimes....On the first page of the novel, Jordon Danner is identified as a "Santa Barbara County District Attorney." No current public employee should be permitted to exploit his or her official position as a lever to earn extra private income....Dudley presents a biased, black-and-white view of the participants in the criminal justice system. She portrays prosecutors as fearless champions of truth and justice. On the other hand, she characterizes the defendant in the novel as "despicable"....Defense counsel is portrayed as "disingenuous and manipulative"....These stereotypical generalizations have no place in a current public prosecutor's thinking processes even if they are uttered in a fictional account. A reader of the novel is bound to consider the source of the comments, and the source here is a public prosecutor presently employed by the Santa Barbara County District Attorney's Office. Perhaps without intending to do so, Dudley is potentially infecting the jury pool with her views on the righteousness of cases prosecuted by that office.
"Consideration should also be given to the views of the petitioner....The California Supreme Court has indicated that a public prosecutor is `a guardian of the defendant's constitutional rights.'...It is understandable that petitioner would question whether his constitutional rights will be protected by a prosecutor who writes a fictional account about a case similar to his own in which the defendant is depicted as a vile brute."
With regard to the conflict of interest question, the court continued, "We conclude that a conflict exists because there is a reasonable possibility that Dudley may not exercise her discretionary functions in an evenhanded manner. There is a reasonable possibility that Dudley's desire to see her book succeed is so strong that it will trump her duty as a prosecutor `to see that justice is done and to accord to defendants their constitutional rights.'...The success of Dudley's book would result in both financial and emotional rewards. She has been making an effort to promote book sales, and the best means of promotion would be favorable media publicity. Dudley will garner no laurels, and this case will not generate favorable media publicity for her book, if she enters into a negotiated settlement with petitioner. If, on the other hand, she tries the case before a jury and obtains conviction, her victory may be acclaimed in the media. Dudley could expect such acclamation to generate favorable publicity for her book, especially since the defendant in the book is charged with the same crime as petitioner. Thus, Dudley's desire to promote her book could motivate her to try the case even though the matter might be fairly resolved through a negotiated plea to a lesser charge.
"There is another reason why a conflict exists. Although Danner is a fictional character, it is reasonable to infer that Dudley is using Danner as a mouthpiece for her own views." The court spent some time explaining why it was reasonable to believe that the character Danner represented Dudley's prosecutorial philosophy.
"Our decision does not result in a wholesale recusal of Dudley in criminal cases or sexual assault cases. We conclude only that she has a disabling conflict of interest in the instant case, where petitioner is being prosecuted for raping an intoxicated person while the prosecutor is promoting her novel involving the identical charge."
The court declined to recuse the entire Santa Barbara County District Attorney's Office. The case is
Haraguchi v. Superior Court of Santa Barbara County, Court of Appeal, State of California, Second Appellate District, Division Six (2d Civil No. B191161)(Filed 10/05/06). Read more about the case in Adam Liptak's story in today's New York Times.