Tuesday, July 2, 2019

Cause Of Death

The California Bar Journal had  reported that an attorney has been disbarred for  prosecutorial misconduct effective July 3. 

The web page now correctly notes that the sanction is a 90-day suspension. 

The matter drew a proposed  one year suspension with all but 90 days stayed  from the California State Bar Court Hearing Department. 

The underlying case was the prosecutor's first homicide.

The death was investigated by Detective (not Colonel) Mustard

As Dr. Hogan was finishing up the autopsy and told Detective Mustard that she could not call this a homicide, she recalled that Detective Mustard said, “What will it take for you to call this a homicide?” Dr. Hogan recorded her autopsy for later transcription. During her dictation, Dr. Hogan stated, “Matt Mustard wants this to be a homicide, and there is no  way I could call this at this point and I'm not going to be pushed into it, so, he can go kiss my ass.” The cause of death was pending toxicology results.

The pressure on the doctor continued

With the toxicology and DNA testings completed sometime in November 2012, Dr. Hogan determined that she still could not call [decedent] Brastow’s death a homicide because she could not rule out that Brastow drowned in her own vomit and thereby accidently caused her own death. She realized that the members of the prosecution team were going to be unhappy with that conclusion.

Respondent was at a meeting where the issue was discussed

At the meeting, Detective Mustard strongly opined that Daniels had shoved the sock down Brastow's throat, thereby causing her death.

Dr. Hogan painstakingly explained why Detective Mustard’s sock-down-the-throat theory was implausible. She scientifically refuted the theory. Not only did Dr. Hogan explain that she did not find any laryngeal edema (a swelling in the larynx), but she also explained why the lack of such finding was important with respect to her determination that a sock was not stuffed down Brastow's throat...

Respondent’s purpose in attending the meeting was to determine if the case was going to be recharged; because if it was going to be recharged, it was going to be his case. Yet, Respondent did not take notes at the meeting. After the meeting,  Respondent did not ask Detective Mustard to draft a supplemental report documenting Dr. Hogan's statements. Detective Mustard did, however, draft at least four other supplemental reports of other witnesses who made statements inculpating Daniels.


After reviewing the autopsy report, Respondent never contacted Dr. Hogan to ask her to include her statements from the January 10, 2013 meeting in her report, or draft a supplemental report regarding her opinions on the prosecution team's primary theory of death. Respondent never disclosed to the defense any of Dr. Hogan's January 10, 2013 statements, including statements that the sock could not have been used to kill Brastow.

He persisted and emailed with Detective Mustard

Mustard responded within 11 minutes: "My opinion is that if we do nothing else he gets away with murder and he knows what he did and becomes empowered and another victim of his violence is just a matter of time. I think that we have done cases that have more obstacles than this one and we need to throw it against the wall and see what sticks."

Respondent replied within one minute saying, "I'm with you. When do you want to do this?"

He went forward

The primary prosecution theory in Daniels, from the night the defendant was first arrested until the case was submitted to the jury, was that a sock, found at the scene, was the likely murder weapon. The day before the preliminary hearing, in a November 25, 2013 email to criminalist Hoang, Respondent revealed his theory of the case with his singular evidentiary focus: "I'm really just interested in the 'sock."‘ He expressed no interest in the analysis of the pillow or any other evidence.

During the preliminary hearing, Respondent offered evidence regarding the discovery of the sock, its location and condition in the motel room, as well as photographs of the sock. Significantly, he offered DNA evidence on only one item - the sock. Moreover, Respondent sought and received a stipulation that Brastow's DNA was found on the sock.

Further, during the trial in April 2014, Respondent again offered testimony regarding the discovery of the sock and its condition at the scene, as well as photographs of the sock and evidence that the victim’s DNA was found on the sock. In his closing argument, Respondent referenced the sock in offering the prosecution theory as to how Brastow was murdered: “There's some sort of violent struggle, she's tied up at a certain point, he inhibits her ability to breathe somehow, we don't know exactly how, maybe it was the sock, maybe it was a pillow, it's not exactly clear because there were only two people in that hotel room." Thus, any evidence negating how the sock could have been used as the murder weapon was exculpatory evidence and should have been turned over prior to the preliminary hearing.

He failed to disclose Dr. Hogan's reservations

In this case, the court finds that Respondent was grossly negligent in not disclosing to the defense the January 10, 2013 meeting, and more importantly, the statements that were made at the meeting. Once Respondent saw that Dr. Hogan left the details from the meeting out of her report, Respondent should have made the disclosure himself or had someone on the prosecution team memorialize the details from the meeting.

The prosecution team discussed specific details of Dr. Hogan’s opinion not otherwise provided to the defense, including specific forensic findings which undermined the prosecution’s theory of the manner of death and the discussion that the sock could not have been used to kill Brastow. The prosecution’s theory of the case was not that the sock was shoved down the throat of the victim that caused her death, but that the sock was a likely murder weapon and that probably it was used to smother her.

Since that was their theory, the fact that Dr. Hogan made statements that amplified how, in medical terms, she did not believe the sock caused the death, her statements were exculpatory and should have been disclosed.

Even Respondent acknowledged that he should have disclosed Dr. Hogan’s statements made at the January 10, 2013 meeting in his February 21, 2014, email to Lee, saying, "I regret not informing you about my meeting with Dr. Hogan." He stated, "I realize that this was a statement by a witness in the case, and even though she didn't provide me with any information that seemed new, inconsistent or exculpatory, I should have told you about it and summarized her statements for you."

It came to light because of actions taken against Dr. Hogan

Rather, on February 20, 2014, just days before trial, the exculpatory information was disclosed by Judge Healy after reviewing Dr. Hogan's personnel records. Those personnel records revealed both an internal investigation of Dr. Hogan by the Sheriffs Office, and the existence and substance of the January 10, 2013 meeting she had with police, Respondent, and others regarding the Daniels case. The subpoenas for Dr. Hogan’s personnel records were issued well after the Daniels preliminary hearing, and only after Dr. Hogan revealed to Jensen that she had not retired from the Sheriffs Office, but had been fired. Had Dr. Hogan not admitted, months after the preliminary hearing, that she had been fired, Judge Healy would not have reviewed her employment records, and her exculpatory statements at the January 10th meeting would never have been revealed.


As a result of the late discovery of the Dr. Hogan evidence, Judge Healy repeatedly asked prosecutors if they had checked to insure that all discoverable evidence had been disclosed. Yet, during the Daniels trial on April 9, 2014, criminalist Hoang, a DNA expert, testified that she had 150 pages of notes and photographs about her testing of crime scene evidence that Respondent failed to disclose to defense counsel.

SF Gate reported on the charges.  (Mike Frisch)


Bar Discipline & Process | Permalink


The California Supreme Court website shows the recommended discipline (90 days actual) imposed.

Posted by: David C Carr | Jul 2, 2019 6:38:07 AM

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