California Bar Journal
OFFICIAL PUBLICATION OF THE STATE BAR OF CALIFORNIA - OCTOBER 1999
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California Bar Journal

The State Bar of California


REGULARS

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Front Page - October 1999
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News
Johnson confirmed for second term as bar's top prosecutor
Courts serve up mixed rulings on State Bar
Ethics association elects Karpman president
Six new governors join bar board
New group targets health care fraud
Public law section creates online library of public law links
JoAnne Spears honored
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Trials Digest
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Opinion
Slaying an imaginary dragon
The perfect ending: Results
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From the President - This bar year ends on a high note
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Letters to the Editor
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Public Comment
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Legal Tech - Tips for network administrators
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New Products & Services
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1999 Honors
State Bar cites pro bono service
Young lawyers salute San Diego sole practitioner for outstanding service
State Bar hails 'lawyer's lawyer'
Aided by attorney, parolee cited, hired
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MCLE Self-Study
The Rigors of Fee Agreements
Self-Assessment Test
MCLE Calendar of Events
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Discipline
Ethics Byte - Before you sue for fees, think again
Woman who impersonated husband ordered reinstated
Attorney Discipline

OPINION

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Slaying an imaginary dragon
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By TIMOTHY D. CLANCY
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Peter Keane, dean of Golden Gate University School of Law, calls for "strict laws which prohibit law enforcement agents from making public pronouncements of a suspect's guilt" (September California Bar Journal). His call may warrant serious debate, but his argument rests on a faulty premise: that law enforcement officers made such pronouncements in the Yosemite murder case.

Since mid-March, when the sightseers' burned rental car was discovered in Tuolomne County, I have worked closely with the law enforcement professionals investigating the deaths of Carole Sund, her daughter Julie and Silvina Pelosso. As an assistant district attorney who will likely be one of the prosecutors on this case, I have followed closely the public statements made by investigators and others about the murders. Unfortunately, Keane has mischaracterized these statements to suit his own purpose.

Keane asserts that FBI special agent in charge James Maddock, whom Keane does not identify by name, announced "confidently and without qualification that the killers of the three women were in custody." Keane then claims that Maddock "named these men and even stated that the FBI laboratory in Washing-ton, D.C., had used the well-established forensic evidence technique of fiber analysis to conclusively prove their guilt." These assertions may support Keane's argument, but they are factually inaccurate.

Timothy D. ClancyThe truth is that, less than two days after the victims' car was found, the media began identifying an individual named Michael Larwick as a possible suspect (Modesto Bee, March 20). Within two days after Julie Sund's body was found, Eugene Dykes also was identified by the media as a possible suspect (Modesto Bee, March 27). Nevertheless, investigators refused to confirm these reports or name any suspects in the case.

For nearly three months, despite continuing speculation in the media and public statements by hostile grand jury witnesses, investigators continued to deflect questions about potential suspects (Modesto Bee, March 25, April 8 and May 16; Los Angeles Times, April 7; San Francisco Examiner, May 23).

Finally, in mid-June, Maddock made the single, fateful statement that has spawned the criticism by Keane and others. Without identifying any suspects by name, Maddock acknowledged that media accounts had "identified some of the people we are looking at" (Sacramento Bee, June 10). Maddock then added, "I do feel we have all of the main players in jail."

Contrary to Keane's assertions, however, Maddock never named the suspects, never discussed the evidence, fiber or otherwise, against them, and never said anything, especially "conclusively," about their guilt. In fact, within days, FBI spokesman Nick Rossi warned reporters that other potential suspects could still be on the loose (Fresno Bee, June 13).

Both before and after the arrest and indictment of Cary Stayner for the murder of Joie Armstrong, several media outlets have reported stories about the evidence that supposedly led investigators to focus on suspects other than Stayner in the Sund-Pelosso case (e.g., fibers, partial confessions, etc.). Without exception, these stories have relied upon unnamed sources. Such potential leaks are troubling and should not be tacitly accepted, even in high-profile cases involving hundreds of investigators and witnesses. Nevertheless, Keane unfairly miscasts such leaks as official pronouncements and, perhaps unwittingly, attributes them to Maddock.

What Keane misses in his zeal to condemn Maddock's statements, aside from the actual content of those statements, is the fact that investigators did many things right in their dealings with the media in this case: no suspects were named until Stayner was charged with a related homicide; none of the evidence was officially revealed until it became public in court filings; no conclusory statements concerning suspects' guilt were made by law enforcement; and, despite heavy public pressure, no charges were filed against potential suspects about whom investigators harbored concerns.

The unwillingness of the Sund-Pelosso investigators to engage in the kind of grandstanding condemned by Keane is perhaps best demonstrated by their reserve after Stayner was arrested. Despite a flood of criticism that could have been mitigated by revealing investigative details, FBI spokesman Rossi continued to deflect questions about specific suspects and evidence: "If we must choose between defending ourselves against critics or maintaining the integrity of a pending investigation, we will always choose to maintain the integrity of the investigation" (Sacramento Bee, July 30).

Does this sound like the kind of law enforcement misconduct feared by Keane? Quite simply, no. It appears that, at least in this case, Keane has concocted the dragon so that he can slay it.

n Timothy D. Clancy is assistant district attorney for Tuolomne County.