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.