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Prosecutorial Misconduct Still Around

May 5, 2012

Fred Thiagarajah

The job of the District Attorney’s office is to promote justice, not get convictions at all costs.  And yet there are some Deputy District Attorneys that still don’t get this basic principle.  The vast majority of the prosecutors that I associated with when I was a Deputy District Attorney and the vast majority of the prosecutors that I oppose now are ethical attorneys.  Unfortunately, there are still some “bad apples” in every bunch.  This week, Alameda County Deputy District Attorney Danielle London was placed on administrative leave after it was discovered she ordered sheriff deputies to secretly record a conversation between an in-custody homicide defendant and the defense investigator.  This is absolutely crazy!  For those of you who don’t practice criminal law, this may not seem like a big deal but this type of conduct is not only a violation of a basic tenet of criminal law — the attorney-client privilege — it is also a felony!

The Sheriff’s Office is allowed to record conversations of in-custody defendants when they speak to anyone other than their attorney.  In fact, conversations are routinely recorded and used against defendants in trial.  And defendants know, or should know, that their conversations can be recorded.  Most jails have signs that indicate conversations can be recorded.  However, the police and the prosecution are not allowed to record, or even eavesdrop, on a conversation between a defendant and his/her attorney or the attorney’s team.  And the defense investigator is part of the attorney’s team.  So, law enforcement cannot purposely listen to conversations between a defendant and a defense investigator.  This is criminal law 101.

Now perhaps this type of mistake might be made by a rookie prosecutor.  But Deputy DA London had been a prosecutor for 10 years!  How could she not have known this was against the rules?  And then on top of that, the Sheriff Deputies should have known better.  They should have told the prosecutor that this was illegal — not acquiesce to illegal conduct simply because a prosecutor ordered them to do so.  The Alameda County Sheriff’s Office said they thought it was ok because a prosecutor ordered them to do it.  That’s preposterous.  If a prosecutor ordered them to plant evidence or lie on the stand, would they have done that as well?

Not only was it against the rules, but it’s a felony to record the conversation of an inmate and a member of the attorney’s team.  It’s not often that prosecutors are the ones committing felonies, but when they do, I hope that they are themselves prosecuted to the full extent of the law.  It will be interesting to see whether Ms. London is actually prosecuted.  To not do so would be to hold prosectors to a lower standard of conduct as everyone else.  If she is prosecuted, it will probably be the Attorney General’s office that conducts the investigation and the prosecution.

On a side note, the homicide defendant in Ms. London’s case accepted new plea bargain for manslaughter with seven years in prison, after Deputy DA London was removed from the case.

To read the San Jose Mercury News article on this matter, click here.


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