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Supreme Court lets prosecutors off the hook

By Diane Karpman

Diane Karpman

A collective sigh of relief could be heard emanating from California prosecutorial offices a few weeks ago, due to two unanimous Supreme Court opinions, Haraguchi v. Superior Court (People), and Hollywood v. Superior Court (People) <>, both filed May 12.

In order to recuse a prosecutor for a conflict of interest, there must be something more concrete and tangible than ethereal inferences. Prosecutorial recusal is governed by California Penal Code §1424, which articulates a two-part test. The first part requires a finding that a conflict exists, and then, if found to exist, it must be severe.

Haraguchi involved a moonlighting prosecutor who wrote a novel about a prosecutor that had some “coincidental” similarities to a case she was currently prosecuting. There was no “meaningful factual connection” (Haraguchi at p.17) between the book and the prosecution. “Protagonists in a novel need not be paragons of impartiality to permit their creators to fairly prosecute criminals . . .” (Id. at p.19.) The court rejected the appearance of impropriety, stating, “Only an actual likelihood of unfair treatment, not a subjective perception of impropriety” will warrant recusal. (Id. at p.28.)

At the oral argument, the court had copies of the book, and many of the justices seemed to have read it. Although the opinion downplayed the case (low profile), and the book (not a best seller), even if the book had been a blockbuster, it probably would not have made a difference in the court’s analysis. The book was published and the case existed, but nobody stitched the two together to demonstrate a nexus negatively impacting on the rights of the accused.

Hollywood was a high profile case that was the subject of the movie “Alpha Dog,” which (coincidentally) was playing on a premium TV channel on the night of oral argument. In Hollywood, the prosecutor gave the movie production company total access to his voluminous file and inadvertently gave the company confidential records (probation reports, etc.), which may have been illegal. “The ultimate focus of the section 1424 inquiry is on protection of the defendant’s rights, not whether recusal may be just or unjust for the prosecutor.” (Hollywood at p.11.) “[R]ecusal motions are not disciplinary proceedings against the prosecutor.” (Ibid.)

“Success in high-profile cases brings acclaim; it is endemic to such matters.” (Id. at 15.) Prosecutors in high-profile cases do not have to be successful to become famous; witness the O.J. Simpson case. But mistakes are easy to make. Consider the case of Mike Nifong involving the Duke University lacrosse players and remember that he was disbarred.

You might be saying that the First Amendment is lurking in both of these cases, but wait: “When a citizen enters government service, the citizen by necessity must accept certain limitations on his or her freedom.” Garcetti v. Ceballos (2006) 126 S. Ct. 1951, 1958.

Just as hypothetical conflicts in the civil arena are insufficient to result in disqualification, so too are vague conflicts in the criminal forum. All clients are entitled to the lawyer of their choice, even if the clients are the people.

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