Suppression of evidence leads to suspension

In a significant decision for California prosecutors, a State Bar Court judge has recommended a three-year suspension for a former Sonoma County deputy district attorney who suppressed exculpatory evidence, claiming he did not actually know about it. If the Supreme Court accepts the recommendation, BROOKE P. HALSEY JR. [#142330], 44, of Tiburon also will be placed on five years of probation and be required to prove his rehabilitation.

While prosecuting a prominent physician in Sonoma for murder, Halsey dismissed the charges after evidence came to light that a key witness had been extensively coached.

The State Bar had sought Halsey’s disbarment, accusing him of multiple acts of misconduct in both the murder case and a misdemeanor Fish and Game matter involving an old friend. Bar Court Judge Pat McElroy found that he committed six of 10 charged violations, including suppressing evidence he had an ethical duty to disclose, misleading a judge and committing acts of moral turpitude.

Halsey resigned last year after 15 years in the district attorney’s office.

In 2000, he took over the prosecution of Louis Pelfini, who was accused of murdering his wife. The original prosecution was botched by the sheriff’s department, which accepted Pelfini’s statement that his wife committed suicide by drowning herself in a bucket of water. As a result, protocol for a homicide investigation was not followed. In addition, the forensic pathologist who performed the autopsy, Dr. Thomas Gill, was incompetent and committed numerous errors, according to McElroy.

When Gill’s checkered background was revealed in press reports, the assistant sheriff hired a coach to improve the doctor’s communication skills and eventually to rehabilitate his credibility. Prior to the trial, Halsey and the coach met regularly to prepare Gill, providing specific guidance for his testimony. More than 40 coaching sessions were videotaped, although Halsey was not present during the taping.

When the defense sought all information relating to the prosecution team’s investigation of Gill’s background, Halsey said the information was irrelevant to the murder prosecution. In four discovery hearings, he made a series of false statements, including that he was not aware of the specific facts that had been gathered about Gill. He also said the detectives who conducted the investigation of Gill did not work on the Pelfini case, which was not true.

When the defense learned during trial that two mock trial sessions with the doctor had been held and videotaped, Halsey was ordered to turn over those tapes. He made a series of misrepresentations at a subsequent hearing, denying he had knowledge of the extent and nature of Gill’s trial preparation.

The next day, he asked that the murder charges against Pelfini be dismissed because the videotapes irreparably harmed the case. He also falsely told the court he didn’t know about the tapes and did not know the coaching included “tailoring testimony and crafting answers.” In fact, McElroy found, Halsey “knew the tapes existed and had helped to prepare Dr. Gill’s testimony by providing suggested answers to questions and by providing questions for Dr. Gill to work on.”

Pelfini cannot be prosecuted again because once a jury is empaneled, double jeopardy attaches.

Halsey argued that because he never had possession of the evidence and did not know the nature of its contents, he could not have possessed the requisite intent to suppress it. McElroy rejected what she called his “hear no evil, see no evil” argument as not credible and said that even if it were true, “such a conscious decision to look the other way is no defense.”

Citing the high ethical standards required of prosecutors, McElroy said it was clear that Halsey failed to be honest with both the court and defense counsel. “His strong belief that the victim was murdered, his overzealousness to convict and his determination not to let the ‘criminal’ go free blurred his understanding of a prosecutor’s special duty to promote justice and seek truth,” she wrote.

Esther Rogers, who tried the case for the State Bar, said previous decisions about prosecutorial misconduct involved actions where the prosecutor had actual possession of the exculpatory evidence and then intentionally suppressed it. In Halsey’s case, she said, the bar had to go a step further since it could not prove he actually had possession of exculpatory evidence.

“We had to show he should have known about it and couldn’t put his head in the sand and then use that as a defense,” Rogers said. “What’s significant for prosecutors is that the State Bar can hold them responsible and they are subject to discipline even if they take the position that they didn’t actually have [exculpatory] evidence in their hands. Prosecutors can be culpable if they have enough indication that evidence exists but they do nothing to take the next step and actually search for the exculpatory evidence.” 

In the second matter, Halsey intervened in the case of Kevin Strain, a casual acquaintance who was charged with violating the Fish and Game Code while hunting for wild pigs. Although it was not Halsey’s case and he had lost touch with his former friend until Strain called him about the investigation, Halsey evaluated the matter on his own and had it dismissed without informing anyone in his office. McElroy found that he had a conflict in the case because of a prior relationship with the defendant.

Although McElroy considered Halsey’s years of discipline-free practice, the testimony of 17 character witnesses and his extensive community involvement, she concluded that he “significantly harmed the public and the administration of justice by failing to uphold his duties as a prosecutor to reveal exculpatory evidence in the Pelfini matter and to disclose his prior relationship with Strain to the DA’s office.”