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Ex-DA faces allegations of withholding evidence

A veteran Sacramento district attorney went on trial before the State Bar last month, accused of prosecutorial misconduct in a 22-year-old murder case that sent a woman to prison for 16 years. CHRISTOPHER CLELAND [#44976], 64, faces five counts of misconduct, including two involving moral turpitude. Cleland, a prosecutor for 33 years who tried numerous homicide cases, has denied all the charges.

The bar based its case on a 2002 Ninth Circuit Court of Appeal opinion that ordered a new trial for Gloria Killian, who was convicted of first degree murder and other crimes in 1986. After three other courts upheld Killian’s conviction, the Ninth Circuit reversed the district court’s denial of Killian’s habeas petition based on what it said were “several substantial errors” by the prosecution.

“If ever there were a case for application of cumulative error principles, this is it,” wrote Judge Michael Hawkins. “The collective presence of these errors is devastating to one’s confidence in the reliability of this verdict and therefore requires, at the very least, a new trial.” The Sacra-mento district attorney declined to retry Killian and she was released after serving 16 years.

Cleland, who retired in 2003 but keeps an active license, said in his response to the bar that he “vehemently opposes and objects to the use of (the Ninth Circuit) opinion” because it is hearsay and not admissible. His attorney, Jesse Rivera, declined to comment.

The case began in suburban Sacramento in 1981 when an elderly couple were robbed by intruders looking for valuables. The husband was shot in the head and died; the wife, also shot in the head, survived. Gary Masse quickly surrendered and in 1983 was convicted of first degree murder and sentenced to life without possibility of parole. After the conviction, Masse offered to make a deal in exchange for a more lenient sentence and implicated his cousin and Killian in the plot.

According to the bar’s charges, Cleland did not disclose to the defense a letter he wrote to the court supporting a more lenient sentence for Masse or a letter Masse wrote to Cleland’s investigator expressing concern about his wife. Masse also wrote a letter after Killian’s trial that stated, “I gave you (defendant) De Santis and Killian . . . I even lied my ass off on the stand for you people.” That letter also was not disclosed to the defense.

Prosecutors are required to disclose exculpatory evidence to defendants, but the bar charges Cleland failed to do so. In addition, it charges that he improperly asserted eight times during the trial that Killian had something to hide when she became silent after her arrest. The Ninth Circuit said Killian was simply exercising her constitutional right to remain silent and should not have been “badgered” by the prosecution.

During his closing statement at Killian’s trial, Cleland told the jury, “We have nothing to do with how much time Gary Masse serves.” In fact, the bar alleges, Cleland had asked Masse’s judge to recall Masse’s sentence and his statement was therefore a misrepresentation to the Killian trial judge and jury. The bar charged that his actions amounted to moral turpitude.

Withholding the letters also involved moral turpitude, according to the charges.

In Cleland’s response to the charges, he said he disclosed to the defense the letter he wrote to the court about Masse’s sentence and accurately represented that no promises were made to Masse in exchange for his cooperation. The letter from Masse about his wife, Cleland argued, would not have helped Killian and therefore was not exculpatory. And, he said, neither letter was subject to discovery.

Cleland also argued that his statement to the court that the prosecution “had nothing to do” with Masse’s sentence was taken out of context; he provided a complete statement from the trial transcript. “There was never any plea bargain and there was never any agreement between Masse and (Cleland),” he said.

Killian, who always maintained her innocence, was convicted of first degree murder, attempted murder, burglary, robbery, grand theft and conspiracy. Sitting in the courtroom last month, she said that as devastated as she was by the verdict, she was even more shocked by what she called Cleland’s “unethical, underhanded methods to convict me.

“There can’t be any justice” for her, she continued. “But this is about accountability, about facing his peers and being forced to explain what he did and how he did it.”

The bar is seeking a lengthy suspension for Cleland, but prosecutor Sherrie McLetchie pointed out that disbarment is still an option for the Supreme Court, which has the final say in attorney discipline cases.

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