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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