Malicious Prosecution / Prosecutorial Misconduct

Avoid being Victims of the Justice Systems by shady prosecutors

When the scales are tipped we are all in jeopardy of the injustice that follows that tipping of the blindly held scales of justice

More and more these days we see the US Government hiring or having elected into office abusive individual that ruin and erode justice.  Justice is fair to everyone always, it cuts on either of its sides depending on the side that is wrong.  In recent times we are discovering more and more about these abusive individuals that have careers with our Government.  Our Government and Freedoms must stay intact and clean, never tarnished, and if tarnished fixed and cleanup immediately so that the scales may re-adjust back to even where the belong.  It is rare that we lose sight of right and wrong as good people we are all subject to being wrong.

cited some from https://www.losangelescriminallawyer.pro/california-penal-code-section-118-1-pc-police-officers-filing-fa.html#:~:text=Under%20California%20Penal%20Code%20Section,report%20on%20a%20criminal%20matter.

Tort Claims Form File Government Claim for Eligible Compensation

Complete and submit the Government Claim Form, including the required $25 filing fee or Fee Waiver Request, and supporting documents, to the GCP.

See Information Guides and Resources below for more information.

Tort Claims – Claim for Damage, Injury, or Death

• Federal –  Federal SF-95 Tort Claim Form Tort Claim online here or download it here or here from us

• California – California Tort Claims Act – California Tort Claim Form Here or here from us

• Complaint for Violation of Civil Rights (Non-Prisoner Complaint) and also UNITED STATES DISTRICT COURT PDF

Taken from the UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA Forms source

Pro$ecutor‘$ Duty to the citizen

20-659 Thompson v. Clark (04-04-2022) – Suing the Government Officially Personally tapping into their financial life legally

In its landmark decision, Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), the U.S. Supreme Court held that federal officials can be sued personally for money damages for on-the-job conduct that violates the Constitution. Cases in which federal employees face personal liability cut across everything the government does in all three branches of government. Whether they are engaging in every-day law enforcement, protecting our borders, addressing national security, or implementing other critical government policies and functions, federal employees of every rank face the specter of personal liability.

This ruling has a complexity to it, that does not favor a malicious prosecutor or police force. 
it holds them accountable! New Supreme Court Ruling makes it easier to sue police when criminal 
charges are dropped or dismissed. This hold the prosecutor accountable because an attorney has 
a fiduciary duty to his client, meaning that a relation “exist[s] between parties to a transaction 
wherein one of the parties is duty bound to act with the utmost good faith in the benefit of the 
other party. Such a relation ordinarily arises when a confidence is reposed by one person in the 
integrity of another, and in such a relation the party in whom the confidence is reposed, if 
he [or she] voluntarily accepts or assumes to accept the confidence, can take no advantage from 
his [or her] acts relating to the interest of the other party without the latter’s knowledge or consent. . . . ”

An attorney may not seek, accept or continue employment where it is not substantiated by probable cause,
 thus an attorney may not prosecute any case that is not well
- 1 Cal. Rules Prof. Conduct, Rule 1-400. 2 Id. 3 McKinnery State Bar, 62 Cal.2d 194, 196 (1964);
Culter v. State Bar of California, 71 Cal.2d 241, 249 (1969); 
see also Coulello v. State of California, 45 Cal.2d 57 (1955); 
Hallinan v. State Bar of California, 33 Cal.2d 246 (1948). 
Clearly, this duty applies not only with reference to the client but also with regard to the court, 
opposing counsel. 4 Cal. Rules Prof. Conduct, Rule 3 -200; Cal. Bus. & Prof. Code

• 6068(c). The ABA Model Rules of Professional Conduct, Rule 3.1 & 4.4, also impose a duty to the legal

system which requires both that the attorney bring only meritorious claims and that they not use inappropriate 
means in the representation of their client that embarrass, bur den, delay or violate legal rights. 
Barbara A. v. John G., 145 Cal.App.3d 369 (1983) (citing Herbert v. Lankershim, 9 Cal.2d 409, 483 (1937); 
Bacon v. Soule, 19 Cal.App. 428, 434 (1912)

new-supreme-court-ruling-makes-it-easier-to-sue-police/

California Civil Code Section 52.1

The Bane Civil Rights Act (California Civil Code Section 52.1) forbids anyone from interfering by force or by threat of violence with your federal or state constitutional or statutory rights. The acts forbidden by these civil laws may also be criminal acts, and can expose violators to criminal penalties.

Sullivan v. County of Los Angeles – 12 Cal.3d 710 – Mon, 11_04_1974 

Prosecutorial Misconduct

“It is prosecutorial misconduct, the weaponization of the Justice System, and an attack by Radicals who desperately don’t want me to have fair and adequate family law/law enforcement services. Especially based previous misconduct and dismissed PC 653 Annoying and harassing phone calls to a residence  (public office isn’t a residence either) against law enforcement (they were recorded and case was dismissed after blackmail was paid to the OC DA Victim Rape Victim Fund (click here to listen to to 2 calls taken over 1 year apart)  cases and the recent criminal malicious prosecution of me when I complain of their negligence and their own crimes they have committed against me and my son.”

DOJ on Prosecutorial Misconduct

Prosecutorial overreaching and misconduct distort the truth-finding process and taint the credibility of the criminal justice system, including the outcomes they generate. NACDL is dedicated to attaining meaningful, systemic reform to help prevent the insidious harm caused when a prosecutor carelessly, or purposefully, fails in his or her duties to us all. This page (click here) contains resources from the Department of Justice on the problem of prosecutorial misconduct.

Malicious Prosecution

Criminal prosecution is malicious if law enforcement pursues groundless charges. Examples of malicious prosecutions include situations in which law enforcement:

• law enforcement:
  • charges a person with a crime to cover up police misconduct, such as excessive use of force or false imprisonment;
  • intends to punish a person by harassing them with criminal proceedings;
  • intends to ruin a person’s reputation by bringing unfounded criminal charges against them; or
  • charges a person with a crime to divert attention from the actual perpetrator.A private person who lies to the police, and causes law enforcement to file false criminal charges, may also be liable for malicious prosecution.

Malice is defined as the state of mind under which a person intentionally does a wrongful act with the intent to inflict injury. But courts focus on the lack of probable cause, and malice may be inferred from its absence. Under Ohio law, a plaintiff cannot sue for malicious prosecution unless the underlying process or legal action has been revolved in the accused’s favor.

Relationship to “Abuse of Process” and “False Arrest”

Another tort claim for litigation misconduct is abuse of process. Abuse of process differs from malicious prosecution in that a person can still sue for abuse of process where there were reasonable grounds to pursue the case, but the lawsuit was initiated with an improper or ulterior purpose. For example, trying to tie up property in a divorce proceeding for the purpose of getting the other spouse to agree to different child-visitation rights may constitute abuse of process. Abuse-of-process claims, however, are difficult to prove and rarely successful.

Other available claims include false arrest, which may lie where police arrest someone without probable cause. Probable cause requires that police have reasonable trustworthy information sufficient to warrant an officer of reasonable caution to believe the arrestee committed, or is in the process of committing, an offense. Typically, acting on a warrant is a complete defense to a false-arrest claim.

Malicious Prosecution and False Arrest as a Civil-Rights Violation

In addition to any state-law claims, both malicious (criminal) prosecution and false arrest are recognized as separate violations of a person’s constitutional right against unreasonable searches and seizures protected by the Fourth Amendment of the U.S. Constitution. Therefore, where malicious-prosecution claims involve an arrest or criminal proceeding, plaintiffs may be able to file in either state or federal court.

Proof of malice is not required to succeed on a claim of malicious criminal prosecution under the U.S. Constitution. But here a plaintiff must prove:

• (a) criminal prosecution was initiated against the plaintiff and that the defendant made, influenced, or participated in the decision to prosecute;
• (b)there was a lack of probable cause for the criminal prosecution;
• (c) as a consequence of the legal proceeding, the plaintiff suffered a deprivation of liberty apart from the initial seizure; and
• (d) the criminal proceeding was resolved in the plaintiff’s favor.

20-659 Thompson v. Clark (04-04-2022) – Suing the Government Officially Personally tapping into their financial life legally

National District Attorneys Association puts out its standards
National Prosecution Standards – NDD can be found here

The Ethical Obligations of Prosecutors in Cases Involving Postconviction Claims of Innocence

Prosecutor’s Duty Duty to Disclose Exculpatory Evidence Fordham Law Review PDF

Chapter 14 Disclosure of Exculpatory and Impeachment Information PDF

Penal Code §§ 146 [unlawful detention or arrest by peace officer] 149 [beating / torturing prisoners], 236 [false imprisonment], 192 [manslaughter], 187 [murder] and 245 [assault with deadly weapon / by means resulting in great bodily injury]), civil liability (i.e. federal civil remedy for violation of federal and statutory rights under color of state law [42 U.S.C. § 1983]), and California state law claims for battery, assault, false arrest / false imprisonment, wrongful death, violation of Cal. Civil Code § 52.1 (retaliation for exercise of, or in attempt to, dissuade prevent another from exercising Constitutional rights), or administrative discipline (i.e. reprimand, suspension, rank reduction, and termination.)

Notwithstanding the absurd and cruel creation of immunity for peace officers that went well beyond the literal wording  and clear meaning of Section 821.6 by the California Courts of Appeal, in 2061 in  Tort claims are typically matters of state law, raising no federal question. However, the conduct complained of may also violate the federal Constitution. In such a case, relief may be available in a federal court under 42 U.S.C. § 1983, which authorizes “constitutional torts”, by creating a private right of action in federal court (Congress even allowing federal claims in a state court), against any person who, “under color of [state law],” causes injuries by violating an individual’s federal Constitutional or statutory rights.  Section 1983, however, “is not itself a source of substantive rights, but a method for vindicating federal rights elsewhere conferred by those parts of the United States Constitution and federal statutes that it describes.” Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979.) Therefore, in order to bring a malicious prosecution claim under Section 1983, a malicious criminal prosecution must be deemed a deprivation of a right “secured by the Constitution.” 42 U.S.C. § 1983.

THE NINTH CIRCUIT COMES TO THE RESCUE AND REFUSES TO FOLLOW THE CALIFORNIA COURTS OF APPEAL IN THEIR AD NAUSEUM EXPANSION OF MALICIOUS PROSECUTION IMMUNITY UNDER SECTION 821.6.

On July 5, 2016, the Ninth Circuit handed down the seminal case of Garmon v. Cty. of Los Angeles, 828 F.3d 837, 847 (9th Cir. 2016), which rejected the California Court of Appeal’s ad nauseam expansion of Section 821.6 immunity and refused to immunize police officers pursuant to that section. In that Opinion, the Ninth Circuit held that they are only bound to follow state law on state law issues when either the highest court in a state (i.e. the California Supreme Court on California law) has decided that issue, or, when the state Courts of Appeals have decided an issue and the federal court finds that the state Supreme Court would have held otherwise. In reaching that holding that Ninth Circuit Court of Appeals held that the California Supreme Court already interpreted [California Government Code] section 821.6 as ‘confining its reach to malicious prosecution actions.’ “Sullivan v. County of Los Angeles, 12 Cal.3d 710, 117 Cal.Rptr. 241, 527 P.2d 865, 871 (1974), and that in their opinion, the 

People v. Superior Court (Greer)

[S.F. No. 23505. Supreme Court of California. March 30, 1977.]

THE PEOPLE, Petitioner, v. THE SUPERIOR COURT OF CONTRA COSTA COUNTY, Respondent; JOHN MICHAEL GREER et al., Real Parties in Interest

(Opinion by Mosk, J., with Tobriner, Acting C. J., Clark and Richardson, JJ., and Sullivan, J., concurring.)

COUNSEL

Evelle J. Younger, Attorney General, Jack R. Winkler, Chief Assistant Attorney General, Edward P. O’Brien, Assistant Attorney General, and Derald E. Granberg, Deputy Attorney General, for Petitioner.

Robert N. Tait, District Attorney (San Luis Obispo), and Daniel A. Hilford, Deputy District Attorney, as Amici Curiae on behalf of Petitioner.

No appearance for Respondent.

Patrick R. Murphy, Public Defender, Charles H. James, Assistant Public Defender, and Michael J. Oliver for Real Parties in Interest.

Ephraim Margolin and Nicholas Arguimbau as Amici Curiae.

OPINION

MOSK, J.

The People seek a writ of mandate compelling respondent trial court to permit a district attorney to conduct a prosecution of a serious criminal charge despite the fact the court is convinced the prosecutor suffers from a conflict of interest which might prejudice him against the defendants and undermine his impartial exercise of judgment. The Attorney General asserts that judicial intervention disqualifying the district attorney violates the principle of the separation of powers (Cal. Const., art. III, § 3) by usurping a function reserved to the executive. We conclude the separation of powers contention lacks merit, and that trial courts have the authority to recuse prosecuting attorneys in appropriate circumstances. We further find no abuse of that power by [19 Cal. 3d 259] the trial judge herein, and therefore conclude that the writ should be denied.

Steven Anderson was killed on July 5, 1975, in Contra Costa County. On December 5 the Contra Costa District Attorney filed an information against defendant Rose Anderson (the victim’s ex-wife) and defendant John Michael Greer, charging them with murder. The information also alleged, as to both defendants, the “special circumstance” that the murder was carried out pursuant to an agreement to give and accept valuable consideration.

Both before and after the filing of the information defendants sought to have the district attorney disqualified, alleging a conflict of interest arising largely from the employment in the district attorney’s office of the victim’s mother, Martha Anderson. fn. 1 On January 8, 1976, the superior court granted defendants’ motion to recuse the district attorney. The court made its ruling on the basis of evidence in the form of sworn declarations and testimony taken at the time of the preliminary hearing.

As might be expected, the circumstances which gave rise to this unusual order were themselves unusual. Martha Anderson had been employed by the Contra Costa District Attorney as a “discovery clerk” for over a year, and was assigned to the very office in which the prosecution of this case was being handled. Her grief over her son’s death was at times made evident to her fellow workers. In addition, the prosecution’s theory involves proof of a protracted dispute between defendant Rose Anderson and the victim over the custody of their child, Paul. As grandmother of the child, not only is Martha Anderson admittedly well acquainted with the details of this controversy, but she is scheduled to be a material witness for the prosecution. Moreover, she potentially stands to gain custody of the child if defendant Rose Anderson is convicted; indeed, at the time of the preliminary hearing a contested guardianship proceeding between the two women was pending.

The latter dispute arose when, upon the arrest of Rose Anderson, the police delivered Paul into the custody of Martha Anderson. Defendants contend the arrest was in derogation of an offer made by Rose [19 Cal. 3d 260] Anderson’s attorney for her voluntary surrender if the district attorney proposed to take her into custody. Evidence was introduced to show that the police acted after consultation with the district attorney’s office, and gave the child into the custody of Martha Anderson despite their knowledge of defendant Rose Anderson’s arrangements to place him elsewhere. Defendants argue that this incident adds to the appearance of a conflict of interest on the part of the district attorney’s office. fn. 2

The trial court concluded in these circumstances that the district attorney should be disqualified. The court then issued two orders directed to the Attorney General, who had the power to assume the prosecution under Government Code sections 12550 and 12553. fn. 3 The first order, issued on January 8, 1976, in conjunction with the disqualification ruling, cited the Attorney General “to appear” before the court “to show cause why he should not prosecute” the case. Upon the Attorney General’s appearance on the order to show cause, the court on January 20 reaffirmed its earlier decision to disqualify the district attorney and issued a second order, directing the Attorney General to “appear” in court on January 27 — the date set for a ruling on defendants’ motion to dismiss under Penal Code section 995 — and on January 29, the scheduled date of a trial readiness conference. Trial remained set for February 2. However, on January 23 the Attorney General obtained a [19 Cal. 3d 261] stay of the proceedings pending a decision on his application for an extraordinary writ requiring the trial court to vacate its orders of January 8 and 20.

We divide our review of the writ application into four parts. The first evaluates the Attorney General’s claim that the doctrine of separation of powers generally prevents trial courts from disqualifying the designated representatives of the executive branch in criminal cases. Second, we consider whether, even if such power exists, it may be exercised to disqualify a prosecutor on the ground that he suffers a conflict of interest which may prejudice him against the accused. We then reach the question whether the court in this case abused such discretion as it had. Our final concern is the validity of the trial court orders which followed the disqualification order and were directed to the Attorney General.

I. Power of the Trial Court to Disqualify a District Attorney.

Undeniably there are circumstances in which the participation of a district attorney in a criminal trial as prosecutor would be improper. For example, it would not be proper for such an attorney to prosecute a client or former client, without that client’s consent, for a crime “relating to a matter in reference to which [the attorney] has obtained confidential information by reason of or in the course of his employment by such client or former client.” (Rules of Prof. Conduct, rule 4-101; Young v. State (Fla.App. 1965) 177 So. 2d 345; State v. Leigh (1955) 178 Kan. 549 [289 P.2d 774]; People v. Gerold (1914) 265 Ill. 448, 471-480 [107 N.E. 165, 175-178]; see Corbin v. Broadman (1967) 6 Ariz.App. 436 [433 P.2d 289]; Annot., 31 A.L.R.3d 953, 963-978.) Nor should a prosecutor try a defendant with whom he is embroiled in civil litigation. (Ganger v. Peyton (4th Cir. 1967) 379 F.2d 709; Sinclair v. State (1976) 278 Md. 243 [363 A.2d 468].)

The Attorney General does not defend the foregoing hypothetical prosecutorial conduct, and, absent constitutional considerations, it seems clear a trial court could disqualify the attorney in question. fn. 4 However, [19 Cal. 3d 262] the Attorney General asserts that the constitutional doctrine of the separation of powers severely restricts the occasions upon which the courts may act to prevent such improprieties. Action by a judge to disqualify a district attorney who proposes to proceed despite an undeniable conflict of interest is said to infringe on the executive power of designating the People’s attorney in a criminal prosecution. While the Attorney General allows for some judicial sanctions against improper prosecutorial participation, he contends these remedies are limited to reversal of any resulting conviction and professional discipline of the offending prosecuting attorney. He further argues that any permissible judicial action must be limited to those situations in which failure of the court to act would result in a violation of “minimum due process standards.”

Article III, section 3, of the California Constitution provides: “The powers of state government are legislative, executive, and judicial. Persons charged with the exercise of one power may not exercise either of the others except as permitted by this Constitution.” [1] Judges must be as vigilant to preserve from judicial encroachment those powers constitutionally committed to the executive as they are to preserve their own constitutional powers from infringement by the coordinate branches of government. [2a] The cases which have sought to define the boundaries of executive discretion in a prosecutorial context, however, lend little support to the People’s attack on the authority of a court to disqualify a prosecutor whose participation at trial would be manifestly improper.

The Attorney General places emphasis on People v. Municipal Court (Pellegrino) (1972) 27 Cal. App. 3d 193 [103 Cal. Rptr. 645, 66 A.L.R.3d 717], and People v. Smith (1975) 53 Cal. App. 3d 655 [126 Cal. Rptr. 195]. Pellegrino upheld the district attorney’s authority over the decision whether to charge an individual with a criminal offense. Noting the provision that all prosecutions shall be conducted by the authority of the People of the State of California (Gov. Code, § 100, subd. (b)), the Court of Appeal barred a trial court from accepting for filing criminal charges instituted by private citizens without the approval of the district attorney. Smith involved a parallel situation, in which a trial court attempted to consummate its own “plea bargain” over the district attorney’s objection, by allowing the defendant to withdraw his not guilty plea to the proffered charge and then in effect charging him with a different, unincluded offense to which a guilty plea was accepted. Both cases [19 Cal. 3d 263] enforced the allocation to the executive of the function of determining which persons are to be charged with what criminal offenses.

However, executive control over the charging function, as sustained in Pellegrino and Smith, is not itself threatened when a trial court disqualifies a district attorney from participation in trial and pretrial proceedings. That disqualification affects only the identity of the state’s representative; it does not in itself alter the charges against the defendants. After disqualification of the district attorney, the Attorney General may still choose to enter the case and proceed against the defendants on the same charges under sections 12550 and 12553 of the Government Code. fn. 5

Furthermore, by emphasizing the executive character of the charging decision the Attorney General overlooks the fact that once the state is ready to present its case in a judicial setting “the prosecutorial die has long since been cast.” (People v. Superior Court (On Tai Ho) (1974) 11 Cal. 3d 59, 65 [113 Cal. Rptr. 21, 520 P.2d 405].) In rejecting separation of powers claims similar to those raised here, we have frequently noted that “When the decision to prosecute has been made, the process which leads to acquittal or sentencing is fundamentally judicial in nature.” (People v. Tenorio (1970) supra, 3 Cal. 3d 89, 94; Esteybar v. Municipal Court (1971) 5 Cal. 3d 119, 127 [95 Cal. Rptr. 524, 485 P.2d 1140]; People v. Superior Court (On Tai Ho) supra, 11 Cal.3d at p. 65.)

Indeed, a categorical denial of the trial court’s authority to ever disqualify a district attorney, far from protecting a constitutional power of the executive, would excise a significant aspect of the judge’s traditional power to enforce the law. It has long been established in civil [19 Cal. 3d 264] cases that the court has the power, on motion of a party, to disqualify an opposing attorney from participating in a trial when, for example, the attorney improperly seeks to proceed against a former client. (Weidekind v. Water Co. (1887) 74 Cal. 386, 388 [19 P. 173]; Elberta Oil Co. v. Superior Court (1930) 108 Cal. App. 344 [291 P. 668]; Meehan v. Hopps (1955) supra, 45 Cal. 2d 213; Grove v. Grove Valve & Regulator Co. (1963) 213 Cal. App. 2d 646, 651-652 [29 Cal. Rptr. 150].) And the Attorney General concedes that in similar circumstances a prosecutorial conflict of interest in criminal cases may require reversal of a conviction in the appellate courts. Yet if the trial judge has no authority to recuse a district attorney, in such a case he could do no more, short of outright dismissal, than helplessly preside over a criminal proceeding which he finds improper and which appears destined for reversal on appeal. fn. 6 Thus, although it is phrased in terms of the separation of powers clause, the argument of the Attorney General that the trial court lacks any disqualification power reduces in dimension to the position that appellate courts are capable of enforcing the law but trial courts are not. Not only does this contention contemplate a waste of judicial resources in futile trials and inevitable reversals on appeal, it is alien to a fundamental premise of our judicial structure, i.e., that trial judges, like appellate courts, are competent to apply the law.

Nor can we accept the argument that before he recuses a prosecutor, the trial judge must first determine that failure to do so would permit a violation of the defendant’s basic constitutional rights. fn. 7 In a trial process which, as noted above, is “fundamentally judicial in nature” (People v. Tenorio, supra, 3 Cal.3d at p. 94), the power of the court under the separation of powers doctrine is not exhausted by the bare enforcement of constitutional guarantees of a fair trial. (See State v. Basham (1969) 84 S.D. 250, 258-259 [170 N.W.2d 238, 242].) Indeed, those constitutional provisions would seem better served when judges have discretion to [19 Cal. 3d 265] prevent even the possibility of their violation. Individual instances of unfairness, although they may not separately achieve constitutional dimension, might well cumulate and render the entire proceeding constitutionally invalid. The trial judge need not delay until the last straw of prejudice is added, by which time it might be too late to avert a mistrial or a reversal. Nor has the Attorney General demonstrated that the performance of any essential executive function requires judges to consciously permit improper prosecutorial participation up to the constitutional limit. In this context, article III, section 3, of the Constitution does not demand trials in which there is no middle ground between absolute executive discretion and constitutionally mandated judicial intervention.

[3] This is not to imply that the executive loses all discretion once a criminal proceeding has begun. The executive has general authority to choose who will prosecute the case, and that representative is vested with the traditional powers of prosecutors in the conduct of criminal trials. (Cal. Const., art. V, § 13; Gov. Code, §§ 12550, 12553.) But “when the jurisdiction of a court has been properly invoked by the filing of a criminal charge, the disposition of that charge becomes a judicial responsibility.” (Italics omitted.) (People v. Superior Court (On Tai Ho) supra, 11 Cal.3d at p. 66.) Thereupon the discretion of the executive — as that of any party to the proceeding — becomes subject to the supervision of the trial court. For example, although a court may not instruct an attorney which arguments he shall make and when, it may order him to cease a prejudicial, profane, insolent, unconstitutional or other improper argument which threatens the integrity of the trial. [4] The court may enforce its orders through the contempt power (Hallinan v. Superior Court (1925) 74 Cal. App. 420, 426 [240 P. 788]; DeGeorge v. Superior Court (1974) 40 Cal. App. 3d 305 [114 Cal.Rptr. 860]); and although rarely invoked against a public official, that power is available against district attorneys as well as other trial participants (Gillen v. Municipal Court etc. (1940) 37 Cal. App. 2d 428 [99 P.2d 555]). [2b] Similarly, while judges do not have the power to direct the executive’s choice of a representative for the People, the Constitution does not deny trial courts authority to disqualify a particular representative when his participation would taint the proceeding. The disqualification of a prosecutor in such a case does not impermissibly infringe on the executive’s power to select a prosecutor any more than the general discretion of a prosecutor in presenting his case is inhibited when he is prevented from proceeding in an improper manner at trial. [19 Cal. 3d 266]

II. Prosecutorial Bias Against Defendant as Ground for Disqualification.

[5a] Having concluded that a trial judge has the authority in appropriate situations to recuse a prosecutor, we next consider whether this power is properly invoked on the basis of a determination that a district attorney’s conflict of interest may bias him against a defendant.

[6] A fair and impartial trial is a fundamental aspect of the right of accused persons not to be deprived of liberty without due process of law. (U.S. Const., 5th & 14th Amends.; Cal. Const., art. I, § 7, subd. (a); see, e.g., Tumey v. Ohio (1927) 273 U.S. 510 [71 L. Ed. 749, 47 S. Ct. 437, 50 A.L.R. 1243]; In re Murchison (1955) 349 U.S. 133, 136 [99 L. Ed. 942, 946, 75 S. Ct. 623]; People v. Lyons (1956) 47 Cal. 2d 311, 319 [303 P.2d 329]; In re Winchester (1960) 53 Cal. 2d 528, 531 [2 Cal. Rptr. 296, 348 P.2d 904].)

It is the obligation of the prosecutor, as well as of the court, to respect this mandate. (Berger v. United States (1935) 295 U.S. 78, 88 [79 L. Ed. 1314, 1321, 55 S. Ct. 629]; People v. Lyons, supra, 47 Cal.2d at p. 318; People v. Talle (1952) 111 Cal. App. 2d 650, 676-678 [245 P.2d 633].) Nor is the role of the prosecutor in this regard simply a specialized version of the duty of any attorney not to overstep the bounds of permissible advocacy. The prosecutor is a public official vested with considerable discretionary power to decide what crimes are to be charged and how they are to be prosecuted. (People v. Municipal Court (Pellegrino) (1972) supra, 27 Cal. App. 3d 193, 203-204; Ganger v. Peyton (4th Cir. 1967) supra, 379 F.2d 709, 713.) In all his activities, his duties are conditioned by the fact that he “is the representative not of any ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer.” (Berger v. United States (1935) supra, 295 U.S. 78, 88 [79 L. Ed. 1314, 1321]; People v. Lyons (1956) supra, 47 Cal.2d at p. 318; see also Ganger v. Peyton, supra, 379 F.2d at p. 713; United States v. Cox (5th Cir. 1965) 342 F.2d 167, 193 (Wisdom, J., concurring).

Thus not only is a judicial requirement of prosecutorial impartiality reconcilable with executive discretion in criminal cases, it is precisely because the prosecutor enjoys such broad discretion that the public he serves and those he accuses may justifiably demand that he perform his [19 Cal. 3d 267] functions with the highest degree of integrity and impartiality, and with the appearance thereof. fn. 8 One of the reasons often cited for the institution of public prosecutions is that “Americans believed that an officer in a position of public trust could make decisions more impartially than could the victims of crimes or other private complainants,” persons who often brought prosecutions under the older English system of criminal justice. (Miller, Prosecution (Am. Bar Foundation 1969) p. 295; see Meister v. People (1875) 31 Mich. 99, 103; 3 Holdsworth, A History of English Law (7th ed. 1956) p. 621, 9 Holdsworth, id., pp. 241, 244-245.) This advantage of public prosecution is lost if those exercising the discretionary duties of the district attorney are subject to conflicting personal interests which might tend to compromise their impartiality. In short, the prosecuting attorney “‘is the representative of the public in whom is lodged a discretion which is not to be controlled by the courts, or by an interested individual. …'” (Italics added.) (United States v. Cox, supra, 342 F.2d at p. 192.)

Of course, the prosecutor’s discretionary functions are not confined to the period before the filing of charges. As noted above, while the trial judge has the power to prevent actual prosecutorial misconduct in court, within those bounds the district attorney possesses the advocate’s traditional ability to conduct his case in the manner he elects. (See, e.g., People v. Pike (1962) 58 Cal. 2d 70, 86 [22 Cal. Rptr. 664, 372 P.2d 656] (voir dire examination); People v. Traylor (1972) 23 Cal. App. 3d 323, 332 [100 Cal. Rptr. 116] (granting of immunity); People v. Tuthill (1947) 31 Cal. 2d 92, 98 [187 P.2d 16] (use of particular witnesses or tests); People v. Eggers (1947) 30 Cal. 2d 676, 693 [185 P.2d 1] (choice of argument); People v. Silva (1953) 41 Cal. 2d 778, 782-783 [264 P.2d 27] (showing details of crime).) The prosecutor further retains the power to negotiate a plea bargain. (See People v. Smith (1975) 53 Cal. App. 3d 655, 658 [126 Cal. Rptr. 195]; Pen. Code, § 1192.1 et seq.) A district attorney may thus prosecute vigorously, but both the accused and the public have a legitimate expectation that his zeal, as reflected in his tactics at trial, will be born of objective and impartial consideration of each individual case. [19 Cal. 3d 268]

In Ganger v. Peyton (4th Cir. 1967) supra, 379 F.2d 709, a federal court was faced with a conviction obtained by a prosecutor who, at the time of trial, was also representing the defendant’s wife in a divorce proceeding against the defendant. The court found that “Such a conflict of interest clearly denied [defendant] Ganger the possibility of a fair minded exercise of the prosecutor’s discretion.” (Id., at p. 712.) Furthermore, the court rejected the state’s claim that the conflict should not result in reversal unless specific misconduct or prejudice against the defendant could be shown, declaring (at p. 714), “the State contends that the improper conduct resulted in no harm to Ganger. We cannot so assume. It is true that although charged with a serious assault that could have resulted in imprisonment to the extent of twenty years, Ganger was convicted of a lesser assault and sentenced to only six months. But we do not know and cannot now ascertain what would have happened if the prosecuting attorney had been free to exercise the fair discretion which he owed to all persons charged with crime in his court.” (Fn. omitted.) The court concluded that the prosecutor’s conflict of interest amounted to reversible constitutional error, observing that “We think the conduct of this prosecuting attorney in attempting at once to serve two masters, the people of the Commonwealth and the wife of Ganger, violates the requirement of fundamental fairness assured by the Due Process Clause of the Fourteenth Amendment.” (Ibid.) fn. 9

Although we do not hold as a matter of law that the participation of the district attorney in this case would necessarily constitute a denial of due process, certainly the due process implications of prosecutorial bias form a background for our consideration of the scope of the trial judge’s power to recuse.

We have so far examined the problem of prosecutorial impartiality largely from the perspective of the accused. Society also has an interest in both the reality and the appearance of impartiality by its prosecuting officials: “It is essential that the public have absolute confidence in the integrity and impartiality of our system of criminal justice. This requires that public officials not only in fact properly discharge their responsibilities but also that such officials avoid, as much as is possible, the appearance of impropriety.” (Fn. omitted.) (People v. Rhodes (1974) 12 [19 Cal. 3d 269] Cal.3d 180, 185 [115 Cal. Rptr. 235, 524 P.2d 363].) Similar considerations led the American Bar Association to adopt, in its Standards Relating to the Prosecution Function, a provision that “A prosecutor should avoid the appearance or reality of a conflict of interest with respect to his official duties.” (Approved Draft 1971, pt. 1, std. 1.2.)

[5b] For all the foregoing reasons we conclude that a trial judge may exercise his power to disqualify a district attorney from participating in the prosecution of a criminal charge when the judge determines that the attorney suffers from a conflict of interest which might prejudice him against the accused and thereby affect, or appear to affect, his ability to impartially perform the discretionary functions of his office. fn. 10

III. Abuse of Discretion

The relative dearth of cases on the subject confirms that such conflicts rarely reach the trial courts. In this state it appears the issue is often resolved by intervention of the Attorney General acting under his statutory powers (fn. 3, ante), and nothing we say herein is intended to discourage that practice. In addition, district attorneys cannot be unduly sensitive in performing their prosecutorial duties. Of necessity they have substantial ties to the communities in which they serve, and might be expected in the natural course of events to become casually acquainted with persons who are subsequently the victims of criminal activity. These relationships seldom rise to the level of debilitating conflicts of interest.

[7] Nevertheless, on the record before us we cannot conclude that the trial judge abused his discretion in disqualifying the district attorney. [19 Cal. 3d 270] The victim of the homicide was the son of a member of the district attorney’s staff who worked in the very office in which the prosecution was being prepared. It was within the bounds of the court’s discretion to determine that the prosecutor might at least appear to have an emotional stake in the case of the sort which could disturb his exercise of impartial judgment in pretrial and trial proceedings. The circumstances surrounding the arrest of defendant Rose Anderson and the transfer of her child to the custody of Martha Anderson further support this ruling. fn. 11

Accordingly, we uphold that part of the trial court’s order which disqualifies the District Attorney of Contra Costa County from participating in the prosecution of these charges.

IV. The Orders Directed to the Attorney General

Our decision that the trial judge did not abuse his discretion in recusing the district attorney diminishes the practical importance of ruling on the propriety of the two additional orders directing the Attorney General to “show cause” why he should not prosecute and directing him to “appear” at two future proceedings. Presumably the Attorney General, pursuant to his duties and powers under article V, section 13, of the California Constitution and section 12553 of the Government Code, will carefully consider whether he will now assume prosecution of the case.

[8] Under Penal Code sections 995, 1385, and 1386, only the court may dismiss criminal charges once they have been filed. After disqualifying the district attorney, the court retained jurisdiction and the power to dismiss the charges in furtherance of justice. Whether the Attorney General intended to assume the prosecution was clearly relevant to the proper disposition of those charges. The court apparently sought to obtain this information by ordering the Attorney General to appear and to declare his position in the matter.

Interpreting the orders in this context, we conclude they were an appropriate incident to the court’s power under sections 1385 and 995, as well as within the scope of section 128 of the Code of Civil Procedure. As [19 Cal. 3d 271] noted above, the latter statute applies to “all … persons in any manner connected with a judicial proceeding … in every matter appertaining thereto,” language which is certainly broad enough to encompass the role of the Attorney General in this case. (Cf. Ligda v. Superior Court (1970) 5 Cal. App. 3d 811, 826 [85 Cal. Rptr. 744].) The mere obligation to appear in court in response to a directive to do so would not itself infringe on any powers of the Attorney General. The court did not order the Attorney General to prosecute the case, and we express no opinion on the propriety of such an order if made. If the Attorney General declines to assume this prosecution, and the court is convinced that the charges should not be dismissed, it will be appropriate at that time to consider the court’s options under the laws of this state. (See, e.g., Pen. Code, § 1130.)

The alternative writ is discharged and the peremptory writ is denied.

Tobriner, Acting C. J., Clark, J., Richardson, J., and Sullivan, J., concurred.

FN 1. These efforts included formal written requests to both the Attorney General and the Governor asking that they exercise their power under Government Code section 12550 (fn. 3, post) to transfer the prosecution to the Attorney General’s office. Both requests were declined.

FN 2. In addition to the evidence relating to the victim’s mother, testimony was received regarding the victim’s widow, a Contra Costa Superior Court typist-clerk. She admitted to copying confidential documents in the court files relating to the custody dispute, and delivering the documents to her husband before his death. Some of the information from those confidential files was allegedly used by the police in their investigation. It is suggested by defendants that the public employment of the victim’s widow further disqualifies the district attorney, in that, as clerk, she had frequent contact with members of the prosecutor’s staff. Defendants also suggest that her actions as clerk add to the appearance of a conflict of interest on the part of the district attorney. The trial court was in a better position than we are to assess the evidence in this regard. However, it would appear from the record that the connection between defendant’s widow and the prosecutor’s office was sufficiently attenuated to make the potential conflict, if any, created by her employment and actions secondary to the more evident conflict arising from Martha Anderson’s position in the district attorney’s office.

FN 3. Section 12550 provides: “The Attorney General has direct supervision over the district attorneys of the several counties of the State ….

“When he deems it advisable or necessary in the public interest, or when directed to do so by the Governor, he shall assist any district attorney in the discharge of his duties, and may, where he deems it necessary, take full charge of any investigation or prosecution of violations of law of which the superior court has jurisdiction. In this respect he has all the powers of a district attorney, including the power to issue or cause to be issued subpenas or other process.”

Section 12553 provides in part: “If a district attorney is disqualified to conduct any criminal prosecution within the county, the Attorney General may employ special counsel to conduct the prosecution.”

FN 4. Section 128 of the Code of Civil Procedure provides in part, “Every court shall have power: … 5. To control, in furtherance of justice, the conduct of its ministerial officers, and of all other persons in any manner connected with a judicial proceeding before it, in every matter appertaining thereto ….” Although in civil cases the disqualification power of the trial judge has been only suggestively traced to section 128 (see Meehan v. Hopps (1955) 45 Cal. 2d 213, 215 [288 P.2d 267]), the purpose and text of the statute are broad enough to encompass such a power. Furthermore, section 128 has been applied to criminal as well as civil cases. (See Cooper v. Superior Court (1961) 55 Cal. 2d 291, 301 [10 Cal. Rptr. 842, 359 P.2d 274]; Ligda v. Superior Court (1970) 5 Cal. App. 3d 811, 826 [85 Cal. Rptr. 744].)

FN 5. We do not mean to deny that the same conflict of interest which disqualifies a prosecutor from participating in the trial of a criminal case may not also taint the procedure by which the defendant was charged, if the same district attorney participated therein. (See discussion at fn. 8, post; see also Corbin v. Broadman (1967) supra, 6 Ariz.App. 436 [433 P.2d 289]; State v. Jones (1924) 306 Mo. 437 [268 S.W. 83]; Annot., 31 A.L.R.3d 953, 984-986.) Thus, if the trial court determines that a district attorney’s participation in the filing of a criminal complaint or the preliminary hearing on that complaint created a potential for bias or the appearance of a conflict of interest, it may conclude that the defendant was not “legally committed” within the meaning of Penal Code section 995, and the information should be set aside. (Cf. People v. Elliot (1960) 54 Cal. 2d 498, 502-503 [6 Cal. Rptr. 753, 354 P.2d 225].) Because that ruling simply denies the accusatory pleading any judicial effect, it raises no issue of interference with the executive charging function. (Cf. People v. Tenorio (1970) 3 Cal. 3d 89 [89 Cal. Rptr. 249, 473 P.2d 993].) The Attorney General himself concedes the “incongruity of ordering the district attorney removed from the prosecution but of not setting aside the information filed by the district attorney.”

FN 6. The possibility that upon being confronted with a disqualified prosecutor, a trial judge might as an initial step dismiss the charges under Penal Code section 1385 does not appear to have been considered by either the court below or the parties to this proceeding, and with good reason. Certainly a dismissal under section 1385 is less well adapted to the problem of prosecutorial conflicts of interest, and more intrusive on the executive, than the recusation of a particular prosecutor, which still may allow the executive to designate another representative and continue the cause.

FN 7. The disqualification of an attorney who attempted to prosecute a former client would, under this theory, be permissible only because required to avoid a violation of defendant’s right to counsel. (U.S. Const., 6th and 14th Amends.; Cal. Const., art. I, § 15.) Other prosecutorial conflicts of interest might be proscribed as due process violations. (U.S. Const., 5th and 14th Amends., Cal. Const., art. I, § 7; see Ganger v. Peyton (4th Cir. 1967) supra, 379 F.2d 709.)

FN 8. The preservation of prosecutorial impartiality is perhaps most important during the charging process, the phase of a criminal proceeding when the prosecutor’s discretion is most apparent. As the court in Pellegrino noted, “the theme which runs throughout the criminal procedure in this state is that all persons should be protected from having to defend against frivolous prosecutions, and that one major safeguard against such prosecutions is the function of the district attorney in screening criminal cases prior to instituting a prosecution.” (Fn. omitted.) (27 Cal.App.3d at pp. 205-206.) Surely an essential aspect of this safeguard must be the prosecutor’s freedom from any personal or emotional involvement in a controversy which might bias his objective exercise of judgment.

FN 9. In Ganger the prosecutor’s conflict was arguably more serious than that which appears on the record before us. There was evidence that the prosecuting attorney in Ganger attempted to use the criminal prosecution to gain an advantage in the civil divorce action, a suit in which there was “the possibility that the size of his fee would be determined by what could be exacted from the defendant.” (Id., at p. 713.) No comparable improper conduct on the part of the district attorney is suggested here.

FN 10. The majority of jurisdictions which have been confronted with similar situations appear to be in accord. (See Ganger v. Peyton (4th Cir. 1967) supra, 379 F.2d 709; State v. Jensen (1917) 178 Iowa 1098 [160 N.W. 832]; State v. Cox (1964) 246 La. 748 [167 So. 2d 352]; State v. Marcotte (1956) 229 La. 539 [86 So. 2d 186]; State v. Tate (1936) 185 La. 1006 [171 So. 108]; Sinclair v. State (1976) supra, 278 Md. 243 [363 A.2d 468]; State v. Jones (1924) 306 Mo. 437 [268 S.W. 83]; People v. Krstovich (1972) 72 Misc.2d 90 [338 N.Y.S.2d 132]; Hall v. State (1923) 24 Okla.Crim. 197 [217 P. 229]; State v. Basham (1969) supra, 84 S.D. 250 [170 N.W.2d 238]; but see Brooks v. State (1969) 45 Ala.App. 196 [228 So. 2d 24]; Benton v. State (1944) 245 Ala. 625 [18 So. 2d 428]; State v. Williams (Iowa 1974) 217 N.W.2d 573; May v. Commonwealth (Ky. 1955) 285 S.W.2d 160, 162 (participation “perhaps permissible,” conviction reversed on other grounds); Commonwealth v. Dunlap (1975) 233 Pa.Super. 38 [335 A.2d 364] (participation of prosecutor improper but not grounds for reversal absent showing of prejudice); State v. Goodwin (1967) 250 S.C. 403 [158 S.E.2d 195] (prosecutor voluntarily withdrew); see also People v. Farnsley (1973) 53 Ill. 2d 537 [293 N.E.2d 600] (minimal participation at trial by assistant counsel); State v. Melerine (1959) 236 La. 929 [109 So. 2d 471] (insufficient conflict shown); State v. Bussa (1932) 176 La. 87 [145 So. 276] (same); Garton v. State (Mo. 1970) 454 S.W.2d 522 (same); State v. McKissic (Mo. 1962) 358 S.W.2d 1 (same); State v. Rosengard (1966) 47 N.J. 180 [219 A.2d 857] (same); Annot., 31 A.L.R.3d 953, 978-983.)

FN 11. Clearly the district attorney was not responsible for the creation of this potential conflict. Nor do we mean to impugn the motives or good faith of his office in seeking to conduct this prosecution. However, we are concerned with the potential for prosecutorial partiality and the appearance of a conflict of interest, both of which the trial court could have reasonably concluded existed in this case.

cited

Learn more about these sujects

• Malicious Prosecution
• Prosecutional Misconduct
• Vindictive Prosecution
• Retaliatory Prosecution
• Abuse of Process

Selected Issues in Malicious Prosecution Cases

Malicious Prosecution / Prosecutorial Misconduct

Vindictive Prosecution – Georgetown University

VINDICTIVE AND SELECTIVE PROSECUTION

What is Abuse of Process?

Defeating Extortion and Abuse of Process in All Their Ugly Disguises

What’s the Difference between Abuse of Process and Malicious Prosecution?

Malicious Prosecution Actions Arising Out Of Family Law Proceedings: Proceed Carefully

Frivolous, Meritless or Malicious Prosecution

SCOTUS Makes It Easier To Sue Police And Prosecutors For Malicious Prosecution

Prosecutional Misconduct – SCOTUS Rulings re: Prosecutors

National District Attorneys Association – National Prosecution Standards – NDDA

What Happens If Charges Are Dropped Before Trial?

Functions and Duties of the Prosecutor – Prosecution Conduct

Possible courses of action Prosecutorial Misconduct

Misconduct by Judges & Prosecutor – Rules of Professional Conduct

PC 1385 – Dismissal of the Action for Want of Prosecution or Otherwise

Thomp$on v. Clark – Maliciou$ Pro$ecution 

Reichle v. Howards (2012) – Retaliatory Prosecution Claims Against Government Officials –1st Amendment

People v. Superior Court (Greer) 5th & 8th Amendment – Bias / Malicious Persecutor

Hartman v. Moore (2006) –Retaliatory Prosecution Claims Against Government Officials – 1st Amendment

What is a Fiduciary Duty; Breach of Fiduciary Duty

Epic SCOTUS Decisions

As the Supreme Court has famously written, the government’s interest in a criminal prosecution “is not that it shall win a case, but that justice shall be done.”  An inscription on the walls of the Department of Justice, just outside the door to the Attorney General’s office, expresses similar sentiments: “The United States wins its point whenever justice is done its citizens in the courts.”

For that reason, federal prosecutors have a special duty – imposed not only by their professional obligations but the Constitution itself – to ensure fairness in a criminal case.  They engage in prosecutorial misconduct when they improperly or illegally act (or fail to act, when required to do so) in a way that causes a defendant to be wrongfully convicted or punished unjustifiably.

Prosecutorial misconduct comes in many forms.  Prosecutors in the United States exercise substantial control over most phases of a criminal case – from participating in the investigation, to deciding what charges to seek, to recommending a sentence after conviction – and prosecutorial misconduct can infect any stage of this process.

Actions that courts have labeled prosecutorial misconduct include:

• Using improper investigative techniques, such as “entrapment” – inducing a person to commit a crime who was not otherwise disposed to commit it.
• Bringing criminal charges in bad faith without realistic hope of winning a conviction – for example, to punish a political rival, or to retaliate against someone.
• Making statements to the media that prejudice the jury pool.
• Engaging in improper plea-bargaining – for example, convincing a defendant to plead guilty through false promises or misrepresentations about the existence of incriminating evidence.
• Failing to turn over exculpatory evidence.
• Tampering with evidence.
• Knowingly presenting false witness testimony or other false evidence to a court or grand jury.
• Asking a defendant or defense witness damaging and suggestive questions with no factual basis.
• Making improper statements in front of the jury – for example, expressing a personal opinion about the guilt of a defendant or the credibility of testimony, mentioning facts not in evidence, or criticizing the defendant for exercising his constitutional right not to testify.

Sufficiently culpable and harmful misconduct can result in the dismissal of charges or a declaration of a mistrial.  Misconduct can also be raised on appeal or by a collateral attack on the conviction through a petition for habeas corpus.

Such relief is rare, however.  To show that prosecutorial misconduct requires dismissal of the indictment or a mistrial, the defendant usually has to show that the prosecutor willfully engaged in misconduct and that the misconduct “prejudiced” the defendant.  In other words, when considering a sanction, judges will consider whether the prosecutor intended to act improperly or was motivated by some illicit or sinister reason.

Even when the prosecutor did not act intentionally, however, a judge might still dismiss the indictment or declare a mistrial if the error rendered the proceeding fundamentally unfair to the defendant.  And if the error did not affect the fundamental fairness of proceeding – and if a judge believes the prosecutor acted in good faith or simply made a mistake – she may impose some lesser sanction, like a stern warning or a curative jury instruction.

For example, in the securities fraud case against Broadcom CEO Henry Nicholas III and Broadcom CFO William J. Ruehle, the court dismissed the indictment and entered a judgment of acquittal to punish prosecutorial misconduct.  The court concluded that the government had improperly intimidated three witnesses critical to the defendants’ case, and improperly influenced their testimony in an attempt to make it more favorable to the prosecution.

In another highly publicized case, the so-called “KPMG tax-shelter case,” the court dismissed charges of fraud and tax evasion that were brought against 13 former executives at the accounting firm KPMG.  The court concluded that prosecutors had engaged in misconduct by pressuring KPMG to withhold payment of attorneys’ fees that the firm had previously agreed to pay for the 13 former executives.  That conduct, the court concluded, unjustifiably interfered with the defendants’ Sixth Amendment right to counsel.

if you need legal help in this area contact the awesome team that wrote this and have a great legal practice in this area  https://www.mololamken.com/knowledge-What-Exactly-Is-Prosecutorial-Misconduct

GRANDPARENT CASE LAW 

Do Grandparents Have Visitation Rights? If there is an Established Relationship then Yes

Third “PRESUMED PARENT” Family Code 7612(C) – Requires Established Relationship Required

Cal State Bar PDF to read about Three Parent Law –
The State Bar of California family law news issue4 2017 vol. 39, no. 4.pdf

Distinguishing Request for Custody from Request for Visitation

Troxel v. Granville, 530 U.S. 57 (2000) – Grandparents – 14th Amendment

S.F. Human Servs. Agency v. Christine C. (In re Caden C.)

9.32 Particular Rights – Fourteenth Amendment – Interference with Parent / Child Relationship

Child’s Best Interest in Custody Cases

When is a Joinder in a Family Law Case Appropriate? – Reason for Joinder

Joinder In Family Law Cases – CRC Rule 5.24

GrandParents Rights To Visit
Family Law Packet OC Resource Center
Family Law Packet SB Resource Center

Motion to vacate an adverse judgment

Mandatory Joinder vs Permissive Joinder – Compulsory vs Dismissive Joinder

When is a Joinder in a Family Law Case Appropriate?

Kyle O. v. Donald R. (2000) 85 Cal.App.4th 848

Punsly v. Ho (2001) 87 Cal.App.4th 1099

Zauseta v. Zauseta (2002) 102 Cal.App.4th 1242

S.F. Human Servs. Agency v. Christine C. (In re Caden C.)

Ian J. v. Peter M

Can I Use Text Messages in My California Divorce?

Two-Steps And Voila: How To Authenticate Text Messages

How Your Texts Can Be Used As Evidence?

California Supreme Court Rules:
Text Messages Sent on Private Government Employees Lines
Subject to Open Records Requests

case law: City of San Jose v. Superior Court – Releasing Private Text/Phone Records of Government  Employees

Public Records Practices After the San Jose Decision

The Decision Briefing Merits After the San Jose Decision

Here is the Public Records Service Act Portal for all of CALIFORNIA Click Here

Rules of Admissibility – Evidence Admissibility

Confrontation Clause – Sixth Amendment

Exceptions To The Hearsay Rule – Confronting Evidence

Prosecutor’s Obligation to Disclose Exculpatory Evidence

Successful Brady/Napue Cases – Suppression of Evidence

Cases Remanded or Hearing Granted Based on Brady/Napue Claims

Unsuccessful But Instructive Brady/Napue Cases

ABA – Functions and Duties of the Prosecutor – Prosecution Conduct

Frivolous, Meritless or Malicious Prosecution – fiduciary duty

Possible courses of action if you are experiencing prosecutorial abuse or misconduct.

As seen on Prosecutorial Abuse Website:
Summary or Checklist of Possible Remedies and Opposing Actions for Prosecutorial Misconduct and Abuse.

These are remedies and suggestions which an attorney and his or her client should consider when trying to offset prosecutorial wrongdoing. The list is not exhaustive, and, to some extent, contains ideas which are somewhat novel.  Some are without significant precedent and some have no precedent.  Yet, the relative novelty of the opposition makes it more effective in some cases. These possible remedies for consideration (without any elaboration, and in no particular order) are:

• Direct constitutional action against federal prosecutor and conspiring witness;
• Raising issues at all levels in state criminal proceedings (trial court and all available appellate courts) to be able to make 2254 habeas corpus petition in federal court without dismissal for failure to exhaust remedies;
• Filing 2254 or 2255 petition in federal court within 1 year after conviction becomes final raising any issues of prosecutorial misconduct and abuse and any issues of ineffective assistance of counsel;
• Demand pre-trial expert discovery equivalent to expert discovery permitted in federal civil actions, to obtain such discovery, if possible, and to preserve such issue on any appeal;
• Demand that prosecutor and/or court or appropriate agency provide funds to defendant equivalent to the amount being spent by the prosecutor (including the market value of the prosecutor’s time), if the defendant is unable to afford to pay such amounts himself/herself;
• File a civil action, as soon as possible, against complaining witnesses for any wrongdoing by them, to ensure that you bring your claim on a timely basis (because if you waited until the criminal proceeding ends you might be precluded by the statute of limitations) and to obtain discovery useful in the civil and criminal actions; and to make the overall litigation more easily resolved through global structured settlement (including the defendant, prosecutor and complaining witness).  After the civil action is filed, in exchange for the claimant’s securing the dismissal of the lawsuit, the defendant agrees to make a series of periodic payments over time known as a structured settlement annuity;
• File a criminal complaint against the federal prosecutor and/or complaining witness if you have grounds, using the Givens rationale (direct constitutional action);
• File a motion demanding that the prosecutor recuse himself/herself due to a conflict of interest, if appropriate (note: a meritorious civil or criminal action by the defendant against the prosecutor would seem to be grounds for recusal, as well as the filing of a meritorious 2255 petition alleging prosecutorial misconduct);
• Demand and file a motion for the taking of pre-trial depositions of bribed prosecutorial witnesses as a constitutional right, or demand an evidentiary hearing in the alternative, to enable the defendant to get all relevant facts in the record; this will be useful during any appeal and during a 2255 or 2254 habeas corpus petition;
• File charges against the prosecutor with the appropriate state organization (usually a part of the state court system) which regulates the conduct of attorneys in the state and can order or recommend sanctions against errant attorneys, including suspension or disbarment; but make doubly sure that you have appropriate grounds;
• Establish a record that the bail being sought is excessive, without justification, far more than is being requested or imposed in other, similar matters, would have the effect of precluding you from defending yourself (by taking funds needed for your defense, or worse, would preclude you from getting out of prison and make you less able to defend yourself against the charges as a result), and that this is the prosecutor’s intent; also, request an evidentiary hearing on the bail issue to establish an appropriate record; and go up on appeal on these bail issues, as an interlocutory appeal, if and to the extent possible under law;
• Demand an evidentiary hearing on the bail issue (as stated within the prior point);
• Move to stay the criminal proceeding as unconstitutional selective, arbitrary and discriminatory enforcement of law (which stay would require holding up the prosecution until the prosecutor commenced criminal proceedings against all others similarly situated);
• Seek a jury charge to let the jury be told that it is lawful for a jury to nullify the court’s instructions to the jury by finding in favor of the defendant if the jury wishes, under whatever standards for upholding jury nullification exist under law; in other words, request a charge on the law which governs the extent to which a jury may find for the defendant in spite of the governing substance law as charged to the jury; and do this with an eye toward raising this issue on appeal if and when the defendant’s request to charge is denied by the judge;
• Demand the right of defendant to appear before the federal grand jury to explain his/her side of the issues;
• When making a 2254 or 2255 petition, demand that any hearing on the matter be commenced within 70 days from the date of filing the petition (under the Speedy Trial Act of 1974, as amended), and upon failure to obtain the commencement of such a hearing within the 70-day period, move to have your criminal proceeding dismissed under the Speedy Trial Act of 1974, as amended;
• Encourage co-defendants to make some of these motions, and join in with their motion, if applicable;
• Demand that the prosecutor’s report to the court monthly the amount of time and money they are spending in their prosecution of the defendant (which is necessary for the defendant to be able to know how much funding he/she should be able to get, similar to “matching funds” to oppose the prosecution);
• Make a motion to require the prosecution to answer under oath that he/she has turned over all listed categories of exculpatory evidence set forth in your motion, as a way of forcing the prosecutor to turn over more exculpatory evidence than he/she normally would, and prepare for the 2254 or 2255 motion based on prosecutorial wrongdoing (of not providing the defendant with all exculpatory evidence the prosecutor did in fact receive, or had failed to accept when he/she was obtaining evidence from various persons);
• Make a motion to request the judge to permit the defendant to testify at the trial with substantial restrictions on the prosecutor’s right to cross-examine the defendant as to the defendant’s background, prior convictions, other matters — on the grounds that such testimony is too prejudicial and the jury’s need to hear the defendant’s side of the story far outweighs the prejudice which the extraneous cross-examination would create for the defendant (and thereby make the defendant unable to testify in his/her own behalf); and do this for purposes of using any denial of the motion as a basis for appeal, and for possible 2255 prosecutorial abuse in denying a reasonable request;
• Review the complete website and the related website Prosecutorial Abuse Website for other matters to add to this list;
• Make a motion to have the judge hold that expert witness reports and all documents upon which the reports are based is not covered by the grand jury secrecy provisions for various reasons, including that experts are not fact witnesses; their testimony is purchased and revealing of the whole relationship is required to limit expert-witness abuse; experts were not envisioned or used when the grand-jury secrecy doctrine was first established, and it was judicial oversight by which expert testimony was swept within the grand-jury secrecy provisions;
• File a motion to preclude the prosecutor from using testimony of prisoners who have been promised mitigation of sentence as violating the Citizen’s Protection Act of 1998, 28 U.S.C. Section 530B; and take this issue up on appeal and in a 2255 or 2254 petition.

How to Deal with Prosecutorial Misconduct and Abuse – Part Two

If you believe you have become a victim of prosecutorial abuse or misconduct, you should consider consulting with a different criminal attorney.  You may find that your present attorney is unwilling to deal with the problems properly.  You may also consider a civil rights attorney.  Review these and other possible matters with such attorney:

Applicability of 28 USC 2254 or 28 USC 2255 or other state or federal habeas corpus motions, or other motions for a new trial, or to dismiss criminal proceedings (grounds for which may include one or more points listed below);

All complaints which your criminal attorney voiced to you about the activities of the prosecutor;

All complaints which you have, if any, about your criminal attorney, whether voiced to such attorney or not;

Any pre-trial publicity which may have been generated by the prosecutor;

Any possible bribery of prosecution witnesses;

Any possible failure to ask for exculpatory evidence when the prosecution was investigating the matter;

Any possible failure by the prosecutor to turn over exculpatory evidence to your criminal attorney (evidence which would tend to help prove innocence of the defendant, or cast doubt on the accuracy or veracity of any of the prosecution’s witnesses);

Any possibilities for obtaining discovery which might have been overlooked, even if such discovery requires an application to the court for permission to obtain;

Any possibilities for obtaining government-provided additional funding of the costs of your investigation or retention of expert witnesses;

Any possible use of civil litigation at this time to preserve your right to relief for the infringement of your constitutional rights (bearing in mind that such action might expose you to discovery yourself, unless you apply for and obtain a court order in the civil case protecting your from discovery until resolution of the criminal matter);

Possibility of a motion to disqualify the prosecutor for the alleged misconduct, and because of any civil action you might have or have brought against the prosecutor;

Motion in the criminal case to demand expert discovery comparable to that which is provided in civil litigation under Rule 26(b)(4) of the Federal Rules of Civil Procedure, the denial of which would be an excellent ground for appeal (the issue being the unconstitutionality of Rules 16(a)(1)(E) and 16(a)(2) of the Federal Rules of Criminal Procedure and 18 U.S.C. Section 3500 7/1/01 Letter to Sen. Leahy, with rule and statute quoted at end of letter which prohibit expert discovery, and particularly expert discovery of government employees who are used as expert witnesses (such as FBI laboratory experts);

Possibility of application of doctrine prohibiting arbitrary, selective and discriminatory enforcement of law, which means that under constitutional law you are not allowed to be selected for prosecution while others known to have done the same thing are not also being prosecuted (which gives grounds to stay, but not to dismiss, the discriminatory criminal proceedings);

Failure to present felony to grand jury under New York law is grounds for a dismissal, whether or not the defendant is incarcerated (there is a constitutional right under New York law to have a felony alleged in a complaint brought before a grand jury for indictment, unless this is waived by the defendant, and this is so even if the defendant is out on bail); you should determine whether this right exists in any other states;

And other matters which come to mind. This list is far from exhaustive.

cited http://caught.net/caught/prosecuteabuse.htm

The Northern California Innocence Project finds 102 California cases, and 31 from Los Angeles County, in which prosecutors engaged in misconduct. The group, based at the Santa Clara University School of Law, is advocating more transparency in how misconduct is addressed.

2020 Update
Missouri Attorney General’s Office pushes to keep innocent people in prison
Watch Exoneree Ricky The Kidd Celebrate

By Jack Leonard, Times Staff Writer – April 4, 2011

Caught.net has emphasized some points in red

California courts last year found that Los Angeles County prosecutors withheld evidence, intentionally misled jurors or committed other types of misconduct in 31 criminal cases, according to an Innocence Project report released last week. The decisions involved convictions dating back as far as 1984 and were among 102 California cases in which the group found that courts identified prosecutorial misconduct.

In 26 of the cases – nine in Los Angeles County – the courts cited the misconduct in decisions to order a new trial, set aside a sentence or bar evidence, according to the Northern California Innocence Project, which is based at the Santa Clara University School of Law. Los Angeles County accounts for about a quarter of the state’s felony criminal filings and one-third of felony trials.

The study is part of an effort by the Innocence Project to highlight the scope and effects of prosecutorial misconduct, which the group says has led to wrongful convictions and costly re-trials. In a study released in October, the Innocence Project listed more than 700 California cases in which state and federal courts identified prosecutorial misconduct in rulings from 1997 to 2009. The Innocence Project has called for greater transparency in how local and state agencies respond to such cases and has urged the State Bar of California, which investigates claims of attorney wrongdoing, to examine all prosecutorial misconduct findings.

Courts are not required to report cases to the state bar if they decide the misconduct was harmless. “What we want is scrutiny,” said Maurice Possley, one of the authors of both reports and a visiting fellow at the Innocence Project. “If they’re not getting the cases or looking at the cases, that sends a message that this sort of behavior is tolerated or acceptable.”

Some prosecutors have accused the Innocence Project of exaggerating the problem. Legal experts – and courts – often disagree on what rises to the level of prosecutorial misconduct. And courts often do not distinguish between intentional and unintentional misconduct. Appellate courts reject most claims of prosecutorial wrongdoing. The Innocence Project’s October study showed that courts that identified prosecutorial misconduct usually determined that the actions did not undermine a defendant’s right to a fair trial. Nevertheless, the state bar has taken note.

After reviewing last year’s study, agency officials discovered that some of the cases cited by the Innocence Project had never been reported to the bar. Attorneys and courts are legally required to notify the state bar if a conviction is reversed or modified as a result of misconduct. “We need to improve the reporting of misconduct … by both lawyers and courts,” said Jim Towery, the state bar’s chief trial counsel. “It is beneficial that the Northern California Innocence Project is focusing public attention on a very significant issue.”

Towery (the state bar’s chief trial counsel) said his agency plans to investigate or reinvestigate “a modest number” of cases cited in the study to determine whether prosecutors should face discipline. He declined to give an exact number or to name the cases, saying that the bar’s investigations are confidential. The state bar, he said, is also extending efforts to educate prosecutors on how to avoid misconduct and what their responsibilities are when it does occur. He said some district attorney’s offices, including Los Angeles County’s, have invited bar officials to provide prosecutors with additional training.

One of the cases cited in last week’s report was that of Eric Hester, who was convicted of rape and sodomy in 2009. A state court of appeals reversed his conviction in September, concluding that L.A. County Deputy Dist. Atty. Robert Hight made numerous improper arguments during the trial. The court faulted Hight for arguing that Hester had a key to enter the victim’s apartment when no such evidence was presented. In discussing the key issue, the appellate court found that “there is every reason to believe that Hight made these arguments with the intention of misleading the jury.” Hight did not respond to calls seeking comment.

Dist. Atty. Steve Cooley said in a recent letter to county supervisors that he reviewed the case and found “no indication that the deputy district attorney acted in bad faith or with actual malice.” The letter said the state bar has launched an inquiry into the allegation, and Cooley asked the board to approve legal representation for the prosecutor. The board has yet to vote on it.

District attorney’s spokeswoman Sandi Gibbons said her office reviews all findings of prosecutorial misconduct and “offers extensive and ongoing ethics training” for prosecutors. She declined to comment on the Hester case or the other court findings, saying that they involve personnel matters. She said Hester is being retried.

In its report, the Innocence Project said it had identified 107 prosecutors with more than one finding of misconduct. Among those named in the study was retired L.A. County Deputy Dist. Atty. Sterling Norris. Last year, a panel of the U.S. 9th Circuit Court of Appeals overturned one of Norris’ cases, the 1984 murder conviction of Bobby Joe Maxwell, who was called the “skid row stabber.” The panel concluded that an infamous jail house informant falsely testified against Maxwell and that the prosecution failed to turn over multiple pieces of critical evidence that could have been used to undermine the witness’ credibility.

The Innocence Project noted another murder case in which a federal judge concluded in 2006 that Norris failed to disclose important evidence to the defense during a 1992 trial. Norris denied failing to turn over evidence in either case and said it was unfair for the federal appeals panel to accuse him of misconduct 26 years later, after the state Supreme Court had rejected previous attempts to overturn Maxwell’s conviction. “That opinion is a joke,” Norris said. Maxwell’s attorney has filed a complaint with the state bar about Norris’ role in the case.

jack.leonard@latimes.com

cited http://caught.net/caught/prosecuteabuse2.htm

GRANDPARENT CASE LAW 

Do Grandparents Have Visitation Rights? If there is an Established Relationship then Yes

Third “PRESUMED PARENT” Family Code 7612(C) – Requires Established Relationship Required

Cal State Bar PDF to read about Three Parent Law –
The State Bar of California family law news issue4 2017 vol. 39, no. 4.pdf

Distinguishing Request for Custody from Request for Visitation

Troxel v. Granville, 530 U.S. 57 (2000) – Grandparents – 14th Amendment

S.F. Human Servs. Agency v. Christine C. (In re Caden C.)

9.32 Particular Rights – Fourteenth Amendment – Interference with Parent / Child Relationship

Child’s Best Interest in Custody Cases

When is a Joinder in a Family Law Case Appropriate? – Reason for Joinder

Joinder In Family Law Cases – CRC Rule 5.24

GrandParents Rights To Visit
Family Law Packet OC Resource Center
Family Law Packet SB Resource Center

Motion to vacate an adverse judgment

Mandatory Joinder vs Permissive Joinder – Compulsory vs Dismissive Joinder

When is a Joinder in a Family Law Case Appropriate?

Kyle O. v. Donald R. (2000) 85 Cal.App.4th 848

Punsly v. Ho (2001) 87 Cal.App.4th 1099

Zauseta v. Zauseta (2002) 102 Cal.App.4th 1242

S.F. Human Servs. Agency v. Christine C. (In re Caden C.)

Ian J. v. Peter M

Can I Use Text Messages in My California Divorce?

Two-Steps And Voila: How To Authenticate Text Messages

How Your Texts Can Be Used As Evidence?

California Supreme Court Rules:
Text Messages Sent on Private Government Employees Lines
Subject to Open Records Requests

case law: City of San Jose v. Superior Court – Releasing Private Text/Phone Records of Government  Employees

Public Records Practices After the San Jose Decision

The Decision Briefing Merits After the San Jose Decision

Here is the Public Records Service Act Portal for all of CALIFORNIA Click Here

Rules of Admissibility – Evidence Admissibility

Confrontation Clause – Sixth Amendment

Exceptions To The Hearsay Rule – Confronting Evidence

Prosecutor’s Obligation to Disclose Exculpatory Evidence

Successful Brady/Napue Cases – Suppression of Evidence

Cases Remanded or Hearing Granted Based on Brady/Napue Claims

Unsuccessful But Instructive Brady/Napue Cases

ABA – Functions and Duties of the Prosecutor – Prosecution Conduct

Frivolous, Meritless or Malicious Prosecution – fiduciary duty