3.09.2010

JN - Forged documents and six pounds of weed

Forged documents and six pounds of weed

Why did District Attorney Paul Gallegos fire a top prosecutor?

by HANK SIMS

According to Worth Dikeman, it's the incident that finally made him decide that District Attorney Paul Gallegos would never grow into the job, and the thing that made him decide he had to run against his boss. It's puzzled courthouse insiders for nearly two years.

Why did Gallegos fire Deputy DA Allison Jackson, a 10-year veteran prosecutor with a sterling reputation among people who deal with sexual assault and child abuse cases, on June 9, 2004, shortly after the defeat of the recall attempt against him?

Recently, Jackson, who is supporting Dikeman's campaign, approached the Journal offering her view of the reasons. Nobody who knew Jackson would have ever described her as a Gallegos supporter. She, along with every other prosecutor in the DA's office supported his opponent when he first ran for office; she, like most prosecutors refused to publicly support him during his successful fight against his recall. Yet she doesn't think Gallegos fired her because she wasn't a political supporter, exactly — she thinks he fired her to protect a local defense lawyer who was.

Some of the people privy to the events that took place during Jackson's last days as a prosecutor have said that they don't recall certain particulars — and Gallegos certainly disputes their significance — but no one has denied that the story, as largely told through court documents and e-mail correspondence Jackson retained, went like this.

On the morning of Friday, May 28, 2004, Jackson agreed to appear in a preliminary hearing in place of another prosecutor. The case involved a charge of possession of marijuana for sale, and when the original prosecutor was called to another courtroom to appear in a different case, Jackson volunteered to fill in. Perusing the case file a few minutes before court convened she realized that she recognized it.

A few weeks earlier, a Southern Humboldt man was in Eureka, with his probation officer. He admitted to the officer that he was in possession of a gun, and was told that that was a violation of his probation. Could he turn the gun over to his attorney, the man asked? The probation officer first said that would be fine, but later changed her mind and called the DA's office for an opinion. The prosecutor she reached was Jackson, who told the probation officer that she had indeed given the man incorrect information; it was not acceptable protocol for him to turn his gun over to a private attorney. The probation officer responded to Jackson's judgment by phoning the sheriff's substation in Garberville and reporting what the man on probation had told her. (The Journal knows the man's name from court documents relating to the case, but could not reach him for his side of events and so decided not to name him in this story.)

Sheriff deputies were dispatched to collect the illegal weapon. When they arrived at the man's place of business, they found, in addition to the gun, six pounds of marijuana in six separate one-pound bags. When the man arrived, they arrested him despite his protestations that he and his wife were both qualified medical marijuana users. Later that evening, the suspect's wife brought in a "physician's statement" issued by a San Francisco doctor showing he was authorized to possess medical marijuana under the terms of Proposition 215. She also showed her own 215 documentation.

(The politics of charging for possession of marijuana when a doctor is willing to document that the drug will be used for medical purposes is cloudy at best. Federal prosecutors have refused to be bound by Proposition 215, but county prosecutors have generally been more sympathetic with the wishes of the California electorate. Sources in the county sheriff's office have speculated that if the man or his wife had been able to produce valid documentation by a doctor of the drug's medical use at the time of arrest, the arrest probably would never have been made.)

Studying the case file before appearing at the hearing, Jackson noticed something about the physician's statement. Near the bottom of the document there is a section in which the doctor is supposed to indicate how long the "prescription" was in effect. The doctor had checked a box next to "six months." Yet there was nothing in the document that indicated the start date. Six months from when?

She found the answer while searching through the defendant's probation report, which documented details of his previous arrest. There, she discovered what appeared to be an identical copy of the physician's statement, with every loop and curlicue of the doctor's handwriting the same in both documents. There was one exception, however: The copy from the probation file contained a date stamp — "Issued July 10, 2001." The physician's statement that the wife had presented only had white space where the date stamp once was. Someone, she concluded, had altered an old, expired medical marijuana document to make it seem current.

In the preliminary hearing, she pointed this out to the judge. The judge then barred the defense attorney — Southern Humboldt's Ed Denson, who specializes in marijuana cases — from entering the physician's prescription into evidence. The court went into recess. Jackson was packing up her paperwork when she happened to glance over at Denson's table. According to her recounting of events, she saw Denson with both the original and the tampered version of his patient's physician's statement, one in each hand. Jackson later said that Denson came over to her table and complimented her on her catch — "Pretty slick" — before stuffing both documents in his briefcase and leaving the courtroom.

Before that moment, Jackson says now, she had assumed that the defendant or his wife had altered the physician's statement. Now she wasn't so sure. In any case, it now seemed clear to her that Denson, who had also represented the same defendant in the previous case, had in all likelihood knowingly attempted to submit a fraudulent document into the record. This is not only an ethical offense punishable by the California State Bar Association — it's also a felony.

She immediately returned to her office and discussed what she had seen with Dikeman, who was at the time a more senior colleague . She also discussed it with the office's lead investigator, Jim Dawson. They all agreed that the appropriate thing to do was to ask a judge to sign a search warrant targeted at Denson, in order to find and preserve the incriminating evidence Jackson thought she had seen.

That afternoon, Jackson sat down and typed out a long e-mail to Paul Gallegos, telling him what she had seen and arguing the need for a search warrant. She didn't hear back from him that day, nor on the following Monday. Finally, at 2:16 p.m. on the afternoon of Tuesday, June 1, he sent Jackson three e-mails in a row. In the first, Gallegos restated the evidence Jackson said she had, then said: "Ed [Denson] represented [the defendant] in the first case so he must know that the current 215 [documentation]has been forged or fraudulently altered." He then asked whether Jackson had herself notified the judge about what she thought she had seen and whether she had asked Dawson to contact Denson so he could explain himself.

In a second e-mail, sent three minutes later, Gallegos asked if Jackson had referred the matter to the Bar Association and wrote "I think this is serious conduct. My first question is always: can we prove it? What do you think?" Finally, ten minutes after that, he sent another e-mail thanking Jackson for bringing the matter to his attention.

Jackson wrote back at 3:15 p.m., answering the questions in Gallegos' first e-mail. She said that she could not have notified the judge at the time she noticed that Denson was in possession of the documents, as court had already adjourned. She said that she had held back on notifying the Bar Association until they could gain possession of the evidence, and that Dawson would not contact Denson and ask him to explain until a warrant had been served.

According to Jackson, she did not hear back from Gallegos for several days. Finally, at 8:06 a.m. on Friday, June 4, she wrote him again, asking for a decision. "Please get back to me as soon as possible as this has sat a week already and I don't want this to get stale." She says she did not get a response.

On Tuesday, June 8, the defendant's San Francisco physician wrote out a new physician's statement for him. "Three (3) lbs. of processed cannabis is not an unreasonable inventory amount for this pt.'s medical condition," it read.

The next day, Gallegos fired Jackson.

The day after that, Denson faxed the defendant's new prescription to Gallegos, along with a note: "Dear Paul: Here is Dr. Ellis' note concerning amounts of medical marijuana for [the defendant] as I promised in my e-mail." (A copy of the fax was provided to the Journal by Jackson.)

The search warrant that Jackson had proposed was never carried out. Eventually, the charges against the defendant were dropped.



When asked about this incident last week, Gallegos was vehement in his assertions that Jackson's firing had nothing to do with her proposed investigation into Denson. "Ms. Jackson may have those beliefs, but it had absolutely nothing to do with that," he said. He said that his decision to fire Jackson came long before the events surrounding this case. But he said he could not give his reasons for firing her, even after the Journal provided him with a notarized statement from Jackson authorizing him to do so. He said he had not, and never would have, contacted Denson about the proposed investigation.

In a follow-up e-mail sent to the Journal earlier this week, Gallegos said that faxes come into his office from defense attorneys all the time. A fax from Denson with a new marijuana prescription for his client would not have been unusual. He declined again to say why he had fired Jackson.

"There was a triggering event but it had absolutely nothing to do with [this case] or Mr. Denson," Gallegos wrote. He suggested that the Journal talk with Rick Haeg, the county's personnel director, who he said could verify that Gallegos had spoken with him about firing Jackson "significantly prior" to the date she was fired. (Haeg said that he did remember speaking with Gallegos about dismissing Jackson before the event, but could not say how soon before her firing he had done so).

Gallegos also wrote that members of his office had decided not to press forward with the search warrant. "I discussed the matter with both my lead investigator, Jim Dawson, and my assistant, Wes Keat," Gallegos wrote. "If either of them had thought it was appropriate to move forward on Ms. Jackson's claims, we would have proceeded on them." He wrote that there were numerous legal and factual hurdles any potential case against Denson would have had to overcome, most of them centering on whether or not Denson knew he was submitting a falsified document. He asked why neither Jackson nor Dikeman ever reported the case to the state bar.

In a call that came in just as the Journal was going to press, Gallegos said that a notice titled "Whistleblowers are Protected" was posted prominently in the office, and suggested that Jackson could easily have contacted the state Attorney General if she wished to pursue alleged wrongdoing.

Assistant District Attorney Wes Keat confirmed last week that Gallegos had issues with Jackson before she was fired, but said that any statement about his reasons for firing her would have to be speculative. When asked why the investigation that Jackson had called for had never been pursued, Keat said that he didn't know the answer. "I remember the story, and I remember it not going anywhere," he said. "I sensed that it was Paul's decision, but I never heard Paul say that much."

And though Keat said that at the time he had no reason to doubt Jackson's telling of events, and that he thought it "shocking" that a member of the bar could have knowingly attempted to deceive the court, he added that there may have been good reasons not to investigate. He just wasn't sure what they were.

"There's a few reasons why we wouldn't play in such a case," he said. "We're generally reluctant to pursue such things against other lawyers. There's some aspect, some chance, some probability that Mr. Denson made a mistake, rather than engaged in misconduct. I don't know whether he was trying to get over, or if he just made a goof, or somewhere in between."

As to the fax that Denson sent to Gallegos the day after the latter fired Jackson, Keat said there could be a reasonable explanation for that, as well. "It's not unusual for defense attorneys to approach the boss to get better treatment than what they're getting in court — sort of going over the prosecutor's head."

Reached last week, Denson initially said he had no recollection of the case whatsoever. When shown documents from the record, he was able to retrieve his own files on the case and was able to discuss it. He said that he could not speak about some aspects of the case, because he could not violate the attorney-client privilege, but said that he had not had any discussions with Gallegos about a potential investigation relating to the attempted submission of false documents — that this was the first he had heard of it. He strenuously denied having knowingly attempted to submit false evidence.

"No one in this office has ever altered a piece of evidence, and I would never knowingly present one to court," he said. "You never make a knowingly false statement to a jury or judge — it's beyond the pale. You don't do that."

Denson said that he was concerned to hear that the Journal was in possession of the fax, which he did not specifically recall sending.

"Assuming I did fax that document to Mr. Gallegos, it would have been part of a confidential negotiation to try to settle the case," he said. "This is what concerns me about these documents being out in the world, is that when you try to settle a case — those are supposed to be the most confidential documents."

Intrigued by the possibility that Gallegos was preparing to clean house in the wake of his successful defeat of the recall effort, the Journal contacted Jackson two years ago, shortly after she was fired. She declined at that time to speak about her experiences in the office, or why she believed she had been fired. She maintained that stance for two years, declining to speak to make public statements about it. Now in private practice at Eureka's Harlan Law Firm, she said last week that she hadn't wanted to see her name bandied about in the press, to be vilified by Gallegos supporters.

"I didn't talk about this at the time, because I didn't think that given what was going on it would have mattered," she said. "It would have only made me into a political football."

She said that she never reported the incident to the Bar Association because she was never able to get documentary evidence, and that by the time she had been fired the case had long since gone cold.

She decided to come forth now, she said, because she thought her story could make a difference. She makes no bones about the fact that she hoped her story would damage Gallegos politically. "If it wasn't meant to affect whether or not he got elected again, it wouldn't have come out at all," she said. She would be the first to admit that, yes, she is a disgruntled former employee.

Gallegos has said that she was fired for a good reason, and though he can't or won't speak about it, that the reason had nothing to do with the events described in this story. She believes, as does Gallegos' opponent, Worth Dikeman, that her firing had everything to do with it. It's difficult, given the long passage of time between the events and her decision to talk about them, to discern exactly what the truth is. By consciously delaying her decision to speak up until the heat of an election campaign, Jackson has only herself to blame if people do not find her explanation credible. Still, however it is read, the story does shed light on how the district attorney's office — a non-partisan arm of law enforcement — has become thoroughly consumed by politics of the bitterest and most personal sort. Draw whatever conclusions you will.