October 2006

Topic:
A disabling conflict of interest existed where a criminal prosecutor wrote a fictional novel based, in some detail, on a case that she was personally prosecuting because there was a reasonable possibility that the prosecutor’s desire to see her self-penned novel commercially succeed would trump her obligation to assure that a defendant would be accorded his constitutional rights.

Massey Harushi Haraguchi v. Superior Court of Santa Barbara County, 143 Cal.App.4th 846, 49 CalRptr.3d 590 (Court of Appeal, 2 Dist. October 5, 2006), as modified (November 1, 2006). This is not a disciplinary case, but it may be of relevance to lawyer regulators, prosecutors and ethicists. Haraguchi filed a petition for a writ of mandate directing a trial court to recuse Deputy District Attorney Joyce Dudley and the Office of the District Attorney of Santa Barbara County from prosecuting him. The Court of Appeal granted the petition as to Dudley with “the hope that this case of first impression will make a case of lasting impression.” During 2005, criminal charges were lodged against Haraguchi charging him with the rape of an intoxicated woman. While the case was pending, Haraguchi learned that Dudley had published a novel in early 2006 entitled Intoxicating Agent . Her literary effort was published by Infinity Publishing. According to Infinity Publishing's website, it charges “a one-time setup fee of only $499. For this, your book will be…shipped to you as a real, hardcopy book in about 8 weeks from submission. It will be made available for sale on our ecommerce Web site, submitted to amazon.com and others, and sold to bookstores on a returnable basis…We will then pay you royalties each month on all sales of your book.” The novel concerns the exploits of a Santa Barbara County Deputy District Attorney named Jordon Danner. According to an article published on the website of the Santa Barbara Independent , “Dudley admits [Danner] is a pumped-up version of herself.” She is quoted as stating that Danner is “Joyce [Dudley] on steroids.” The novel describes Danner as “zealous…about seeking justice” and “brave” in “stepping up and fighting for it.” Danner has “the poise and sexiness of a dancer, the brains of a scholar, and the protective passion of a mother.” The book jacket summarizes the novel as follows: “While prosecuting a volatile arson/murder case…Jordon Danner finds herself in the untenable position of falling under the influence of her adoring and seductive investigating Officer. Jordon's attraction to him collides with her love and devotion for her husband, family, and justice. In an effort to resolve her heart-wrenching conflict, as well to consider the hurdles she now faces in the murder case and an impending trial of an alleged rapist, Jordon retreats to her remote mountain home. This story occurs in an astonishing 48 hours during which time Jordon confronts a diverse assemblage of life-altering, intoxicating agents. ”In the novel the victim of the rape is Diana Johnson. Diana is described as “devoted to her job, community, family, and friends.” “Her afternoons and evenings were filled with ongoing community outreach programs, one of which was devised by her. The project she created involved children and the elderly working together in a vegetable garden.” At the time of the rape, Diana was intoxicated from alcohol. “[L]ab reports revealed that the only intoxicating agent present in her system was alcohol, which was found at, ‘extremely high levels.’ ” Danner concludes that Diana is an alcoholic “in denial about her alcoholism.” The defendant in the novel is 42-year-old Ernesto Cantera, described as having a “bloated” face, a “protruding belly,” and “filthy hands.” “Talk about felony ugly, [Danner] thought, he looks just like the pig he is!” “Felony ugly,” the author notes, is “[a]n in-house expression used by some prosecutors to describe a defendant who fits the stereotype of a perpetrator of the crime for which he is charged.” Danner was “saddened…especially because Cantera turned out to be so despicable.” “This dirt bag really did a number on her [Diana].” Danner said to herself, “I'll get you, you heartless bastard …for Diana's sake and for all the others who could follow.’ But if I try…and don't succeed, then all he'll learn is that he can get away with victimizing woman [ sic ]. I can't try this one…unless I can win it.” Cantera's counsel, Ted Ross, had a “reputation for being both disingenuous and manipulative.” He told Danner that his client would plead guilty to a reduced charge of sexual battery provided that she agreed “to probation and no additional jail time.” Ross appeared in court and inquired about his offer. A deputy district attorney standing in for Danner said that Ross's offer was rejected and that Danner was going to kick his “ass.” The deputy district attorney later explained to Danner, “[I]t's true, you will kick his ass. Because in a month's time your victim will walk into that courtroom with her head held high.” In his recusal motion, Haraguchi alleged: “[Dudley's] book contains a lengthy fictional account of a rape by intoxicating agent. Just like [petitioner's] trial, [the] Deputy D.A. arranged for the fictional trial to begin in April 2006. These and other coincidences lead [petitioner] to fear that the lines between fact an[d] fiction have been obscured by the publication of the book, and that the District Attorney's obligation to exercise discretion and seek justice impartially is now compromised by her financial and emotional interests in promoting her book.” In support of the recusal motion, Haraguchi’s lawyer declared that, in her novel, Dudley had “incorporated facts of the real District Attorney's investigation of [petitioner's] case…” He also alleged that “has been promoting the book throughout the county of Santa Barbara.” The book is being sold in at least two local bookstores. Dudley conducted a book signing at one of the book stores and at the Women's Center of the University of California at Santa Barbara. A local television station, KEYT, interviewed Dudley about the book. The Santa Barbara Independent published a favorable review of the novel, “giving readers five reasons to read the book.” According to petitioner's counsel, “[w]hen [he] took over [petitioner's] case from prior counsel, Ms. Dudley's first unsolicited remarks to me were ••• that no other prosecutor at the DA's office would take a case like [petitioner's], but that she could win it.” Counsel indicated that Dudley's remarks were similar to the following excerpt from the novel: “Jordon [Danner] was positive another D.A. wouldn't want this case, and, she knew the victim would feel betrayed if she handed it off.” Petitioner's counsel further declared, “From the first time [he] talked to Ms. Dudley about this case, she said it would not settle. She refused to enter into any settlement negotiations and has summarily informed the court that the case will go to trial.” In opposition to the recusal motion, Dudley declared: “This fictional book is not directly or indirectly based on the facts of the instant case. The fictional book does not describe any events or details of the case against [petitioner]. The fact that I have written and published this fictional book has not affected or impacted any of my decisions in this case.” “The trial court agreed with Dudley, finding the novel “coincidental to [Haraguchi 's] circumstances.” The Court of Appeal disagreed, holding that Dudley was laboring under a disabling conflict of interest. Although her novel and Haraguchi’s case have differences, enough similarities existed to suggest that Dudley was relying on Haraguchi’s situation for plot lines. The Court found that a disabling conflict existed because there was a reasonable possibility that Dudley might not exercise her discretionary functions in an evenhanded manner. There was thus a reasonable possibility that Dudley’s desire to see her book succeed is so strong it would trump her duty as a prosecutor to see that justice was done and to accord to the defendant his constitutional rights. The Court held:

Dudley is using her official position to obtain personal financial gain. Her connection with the Santa Barbara County District Attorney's Office is a major selling point for the book. The front cover shows a file with the heading, “Santa Barbara County District Attorney File.” The back cover states, “Joyce Dudley is a Senior Deputy District Attorney for Santa Barbara County. She specializes in: sexual assault crimes, crimes against children, murder, and hate crimes.” In the acknowledgements section, Dudley writes, “Weekdays I am surrounded by caring, smart people in the Santa Barbara County District Attorney's Office and in our courts-for this I am deeply appreciative.” On the first page of the novel, Jordon Danner is identified as a “Santa Barbara County District Attorney.” No current public employee should be permitted to exploit his or her official position as a lever to earn extra private income where such will inure to the detriment of the employer. Albeit in a different context, the United States Supreme Court has said that “injecting a personal interest, financial or otherwise, into the [law] enforcement process may bring irrelevant or impermissible factors into the prosecutorial decision and in some contexts raise serious constitutional questions.” ( Marshall v. Jerrico , 446 U.S. 238, 249-250 (1980)).

Finally, the Court declined to recuse the entire office of the Santa Barbara District Attorney. According to the Court, other than speculation, there was no evidence of the likelihood of unfairness if another prosecutor in the office took over the case.