Case highlights lack of safeguards during jail interviews; Judge: Inmates can't be expected to know the law

Case highlights lack of safeguards during jail interviews; Judge: Inmates can't be expected to know the law - Grant Scott-Goforth/The Times-Standard

Case highlights lack of safeguards during jail interviews; Judge: Inmates can't be expected to know the law

Humboldt County Superior Court Judge Bruce Watson said a Eureka Police Department detective stepped over the line when he interviewed a burglary defendant without an attorney present in February.

Public defender Gregory Elvine-Kreis, who heads the county's Conflict Counsel Office, said the police department lacked safeguards for defendants' attorney-client privilege when EPD Detective Ron Prose interviewed his client about an alleged burglary. Elvine-Kreis sought a dismissal of charges against his client, which Watson denied Friday.

Watson said it's not unusual for an attorney to allow a client to speak with police when it doesn't regard the case at hand. This keeps the attorney from hearing information relevant to other clients that he or she may have.

”The attorney is, in essence, shielded from that information,” Watson said.

That permission is usually based on the expectation that only collateral information will be discussed, Watson said. In this instance, the detective should have asked the public defender if he could talk to his client about an alleged burglary. The attorney arranged the interview, but apparently was unaware that the conversation would lead to the matter currently before the court.

That interview led to a confession, in addition to other information the detective was seeking.

Former Deputy District Attorney Allan Dollison, who was informed of Prose's interview as early as March, could have used a confession to counter any testimony the defendant gave in court.

”The problem is the defendant is not expected to be, nor schooled in those finer points of law,” Watson said.

Prose testified that he had frequently spoken to inmates to gather information, and his supervisors did not warn him against talking to the defendant about the burglary case.

He said the content of inmate interviews are sensitive because it can put defendants at risk if it becomes known they collaborated with police.

Eureka Police Chief Murl Harpham was subpoenaed but did not appear at the hearing to discuss the protocols of interviewing inmates.

”Harpham is the boss,” Elvine-Kreis said. “He is not aware of this case, he knows nothing about this interview, he is being called to lay the foundation that the Eureka Police Department doesn't have any safety mechanisms in place for violations of citizen's constitutional rights.”

Reached on the phone Thursday, Harpham said he told Elvine-Kreis in a conversation prior to the hearing to contact him if he wanted him to appear, although he was surprised to receive a subpoena.

”There's nothing I can offer,” he said, saying he wasn't familiar with the “convoluted” case or the interview.

He said he called the county's Conflict Counsel Office and asked why he was subpoenaed and was told, “just be on call that day.”

”All he has to do is phone,” Harpham said. “I'm not gonna go sit up there all day for something I don't know about.”

Harpham said while he doesn't have a policy dictating how detectives should talk with defendants in custody, that there's an expectation the officers are aware of laws regarding their rights.

He said the defense attorney requested a meeting with EPD, and they granted that request.

Watson said it didn't appear that EPD or the district attorney's office attempted to hide the interview or stood to benefit from hiding it.

”There doesn't seem to be anything to be gained by any purposeful non-disclosure,” Watson said.

Public defender cites police, DA misconduct in burglary case; Judge denies motion to dismiss

Public defender cites police, DA misconduct in burglary case; Judge denies motion to dismiss - Grant Scott-Goforth/The Times-Standard

Judge Bruce Watson denied a motion to dismiss a burglary case Friday, amid accusations by a public defender that a former Humboldt County District Attorney's Office prosecutor committed misconduct by failing to report a police interview with his defendant, saying it was not warranted under the circumstances.

The district attorney's office had argued the non-disclosure was simply negligence, resulting from an over-burdened staff.

The case highlights the sometimes controversial practice of police officers attempting to gain information from inmates in exchange for leniency in sentencing.

A mistrial was declared in the case on Dec. 13, following opening statements. Judge Marilyn Miles, who was overseeing the trial, granted the defense request when it came out that a police interview had taken place with the defendant outside of the scope agreed upon by her defense attorney at the time, and that the information she gave about her pending case was not turned over to the defense until the trial had started.

Public defender Gregory Elvine-Kreis, who heads the county's Conflict Counsel Office, then filed a motion to dismiss charges against his client.

In his ruling Friday, Watson said the accusation that former Deputy District Attorney Allan Dollison, who resigned earlier this month, knew the content of the interview without disclosing it to the defense was convoluted.

”There's different versions to what exactly was known and when,” he

said. “It's unclear, quite frankly, whether he knew.”
Watson said the non-disclosure was not egregious enough to warrant dismissal. Elvine-Kreis indicated Friday that he would look into appealing the judge's denial to dismiss charges.

At the court hearing before Watson this week, Elvine-Kreis said a dismissal of the case would be the only way to send a message to the Eureka Police Department and District Attorney's Office about protecting defendants' rights.

”When this type of interference with attorney-client privilege happens, you're the last piece of accountability,” Elvine-Kreis said. “This court has to let the district attorney's office know that this is not negligence.”

Deputy District Attorney Zachary Curtis said dismissing the case was a drastic measure.

”There are other remedies, other means of holding prosecutors and police accountable,” he said, adding that it is not “this court's task to punish police and prosecutors.”

In opposing the motion to dismiss, Curtis said Dollison had no reason not to disclose that he knew about the police interview.

”It just boggles the mind to think that the prosecutor would deliberately hide this information,” he said. “It just escaped Mr. Dollison entirely.”

Curtis said it amounted to “facts lost to an extremely busy prosecutor in an overloaded office.”

Elvine-Kreis said understaffing wasn't a justification for the violation of a defendant's rights.

”Part of the reason this happens is they are overwhelmed,” he said. “If they are overwhelmed, they need to hire.”

Rory Little, a former prosecutor and law professor at University of California Hastings, said a heavy workload can lead to mistakes.

”People forget that lawyers are human beings, and it's not easy to handle a caseload,” he said. “At the same time, the rules are pretty clear.”

Dollison took the stand on Wednesday, answering questions from Elvine-Kreis and Deputy District Attorney Zachary Curtis about when he was aware that an EPD detective had interviewed the defendant in February.

Dollison said he became aware of the interview in July, but was not aware of the content of the interview -- which Elvine-Kreis called a confession -- until Dec. 10, after the trial had begun.

Elvine-Kreis said that Dollison knew about the interview in March, when he offered a reduced plea deal to the defendant. Dollison said he offered the deal without knowing the content of the defendant's statement, but Elvine-Kreis took exception, arguing that it was “ludicrous” that Dollison reduced an offer without knowing the content of the interview.

Watson said in his ruling that it was “peculiar” that EPD never provided the interview to the district attorney's office, and that Dollison did not request or receive the contents of the interview before the trial began.

”None of that is flushed out,” Watson said. “It doesn't occur, and that's odd.”

It remains unclear if there will be any disciplinary action regarding Dollison's non-disclosure of the interview to the defense. The State Bar could pursue the matter if it received a referral from the district attorney's office, Elvine-Kreis or a judge.

In a column submitted to the Times-Standard, Dollison said that resigning was the best decision “for my career and ultimately my family.”

Little said the State Bar has indicated that it's taking prosecutorial misconduct more seriously.

”There's increasing concern about the way prosecutors conduct their business these days,” he said.

Little said prosecutors are typically under more scrutiny by the media and the public.

”That's not necessarily wrong,” Little said, but can mean that they get less margin for error than defense attorneys.

”You can't draw any inferences from resignation,” he said. “I've seen prosecutors resign when they've done nothing wrong -- they're tired of being a punching bag.”

Grant Scott-Goforth can be reached at 441-0514 or gscott-goforth@times-standard.com.


Allan Dollison: My record at the DA's Office

My record at the DA's Office - Allan Dollison/My Word/Times-Standard

I write this in response to the recent story that was published in the Times-Standard on the fact that I had departed the District Attorney's office after 6 years and 4 months (”Deputy district attorney out after 6 years,” Times-Standard, Jan. 16, Page A3). It is true that I have left. Mr. Gallegos accepted my voluntary resignation effective Jan. 11, and this part of a chapter of my life is now complete. It was a difficult decision, but in the end, I felt it was best for my career and ultimately my family.

The article pointed out that I was trying serious and violent felonies. Most recently, I was known for the successful prosecution and conviction of Brian Fiore, one of the worst crime sprees that this county had ever seen. Mr. Fiore received 68 years and 8 months and then three consecutive life sentences on nine felony convictions. I was actually in Iraq, serving my country when I read about it online, and I said, “Whoa, I really need to get back.” Three months later after completing my mission in Iraq, I reported to work eight days after returning from war.

You don't just have one case that you handle in 6 years and 4 months. During my career, I negotiated two guilty pleas to murder. Guilty pleas to murder are rare, in that being convicted of murder carries what is called an indeterminate sentence, and the governor has to ultimately approve any parole, and being convicted of murder is generally the worst thing that can happen, yet I accomplished that twice.

Joaquin Fitzgerald murdered a homeless man who was celebrating his birthday, and he received a sentence of 15 years to life in prison for second degree murder. I also handled the James Stanko murder case, another terrible crime spree, where six robberies culminated in the murder of cancer survivor and Army veteran Andrew Pease. Mr. Stanko received a 26 years to life in prison after pleading guilty to first degree murder and the six robberies. I personally gave my Bronze Star Medal (awarded for combat in Afghanistan) with my card to Mr. Pease's widow, as I thought it was an appropriate thing to do. I still see her around town, and always give her a big hug, and get emotional about her husband's case.

In 2007, I successfully tried and prosecuted Robert Canfield in a home invasion robbery of a single mother and her child in their west Eureka apartment. He received a 14-year sentence. Later that year, Johnny Randall was held accountable for resisting arrest by the now-chief of Hoopa Tribal Police, Robert Kane, who was injured in the melee. Randall was convicted by a jury, and later sentenced to prison for 4 years and 8 months. I also successfully tried a sexually violent predator case, that of Jerome Franz Gonzales, who had twice been convicted of molestation incidents in El Dorado and Del Norte counties. He received an indefinite term at a state hospital until he is cured.

In 2010, I tried the very difficult Roy Stevens murder case, that of a blind man who had gotten in a fight with his brother. He reached a point of safety, but came back with a gun and killed his brother. He was convicted of involuntary manslaughter, even though one of the sheriff's detectives said that he thought the jury would never convict the man of anything.

Part of this process, what I always thought and believed was my duty, was to prove the cases to best of my ability beyond a reasonable doubt, which also insured the victims had their day in court, a process that some in the criminal justice field believe can be a cathartic process for victims of crime. This is not always true, and many victims never want to have to go through the court process at all, and see the defendants. I did my level best to achieve an appropriate balance of those competing interests.

During these times, in our local newspapers there is lots of coverage about the DA's Office. Admittedly, not all of it is positive. The basic overriding fact was spelled out last year in an excellent series of articles by Thaddeus Greenson -- that the office is woefully underfunded, and that this causes too many cases, in excess of the American Bar Association recommended guidelines. With my departure there are three attorneys who handle the four misdemeanor trial courts (and one of those handles special grant cases as well). There are now three attorneys who handle the four felony trial courts. (These are the same four courts; they just shuffle on a daily basis between felonies and misdemeanors.) We also have a Juvenile prosecutor, and a Fish and Game prosecutor, and then the assistant DA and finally Mr. Gallegos. We also have a retired prosecutor who works part time. Mr. Gallegos' own trial schedule has dramatically increased to help make up for this difference.

I used to run a contract Public Defender's office in a rural county called Amador in between Sacramento and Lake Tahoe. That county's DA's Office is the same size as Humboldt's, but the population disparity is profound -- they have 38,091 people to Humboldt's 134,623. I can report to you that the staff of the Humboldt County DA's Office is dedicated, and are all really good lawyers, who all choose to work in what is obviously a difficult environment. I highlight my cases and my work to show that even amongst all of these impediments you can have success (and yes, I had my share of failures, too). However the elected leaders of Humboldt County together with its populace must have a discussion, and decide if they want this situation to continue, where the office is dramatically under-staffed and under-resourced. Mr. Gallegos was even quoted as saying (in Mr. Greenson's article), “I'm breaking people.” There has certainly been a large staff turnover over the years, and all people leave for different reasons, but no community should want their government servants to be “broken.” The stakes are too high, as the basic function of the District Attorney's office is to protect all of this community's citizens.

Allan Dollison resides in Eureka.