FROM THE LAST DAY of THE DEBI AUGUST TRIAL
I hesitate to call it a trial, because this "trial" never made it to the Jury selection process.
Stoen's pattern seems to be to try his cases in the public, in the media, in a usually successful attempt to get his prey to settle to avoid court costs and further embarrassment. In both his cases in Humboldt County, people stood up to him and his cases were dismissed outright without ever making it to trial. One called "Smoke and Mirrors" and worse. Had Debi August not stood up to him, she would have been another notch on his belt. Instead he was exposed.
The information contained in this DECLARATION and its 19-page attachment reveals that:
The DA (Paul Gallegos) and ADA (Tim Stoen) told the Grand Jury that everything would remain secret if they went forward with the accusation.
They assured them that witnesses would not be identified.
Gallegos and Stoen disclosed confidential Grand Jury information without the permission or notification to the Grand Jury.
Gallegos and Stoen affirmatively sought the release of the information they assured the Grand Jury was totally protected by "attorney client privilege."
Stoen expressly told the Grand Jury that he was "their attorney."
Stoen waived the attorney-client privilege he had promised the Grand Jury against the wishes of the Grand Jury, but in favor of his office which clearly had a conflict in the matter.
The grand jury accusation process was being run by the DA (Gallegos) and ADA (Stoen).
Gallegos did not seal the record after promising the Grand Jury that he would nor did he advise the Grand Jury that he didn't seal it.
The Grand Jury felt that "The Grand Jury was badly used and misled by the DA and ADA and that the mishandling of the entire accusation process undermined the integrity of the Grand Jury System in Humboldt County."
***
(Note: _____ indicates page breaks throughout)
(all phone numbers will be omitted in this post)
Allison G. Jackson, CSB #I57078
Harland Law Firm LLP
322 "H" Street
Eureka, California 95501
(phone number)
Attorneys for Judith Schmidt
SUPERIOR COURT OF CALIFORNIA
COUNTY OF HUMBOLDT
THE PEOPLE OF THE STATE OF
CALIFORNIA. v DEBORAH G. AUGUST, also
known as DEB1 AUGUST,
Accused.Case No. CV040307
Plaintiffs, DECLARATION OF ALLISON JACKSON
I, Allison G. Jackson declare that:
1. I am the attorney of record for Judith Schmidt, witness in the above mentioned proceedings.
2. On Friday, June 3,2005 and on Monday, June 6,2005, I delivered documents relevant to these proceedings to the court after reviewing a court order
concerning discovery which had been ordered by the court in the above mentioned matter.
3. The documents in attachment "A and incorporated with reference herein were part of the documents delivered to the court on the dates mentioned in paragraph 2.
______1
4. The documents in attachment "A" were delivered to the court clipped together in the same manner and in the same order as presented in attachment "A."
5. On Wednesday, June 8, 2005, prior to my client testifying in the above mentioned matter, I received a subpoena duces tecum by defense counsel which requested e-mail and faxes to and from my client after she left the grand jury on July 13, 2005. Pursuant to that subpoena I separated out those documents and copied them to comply with the subpoena.
6. One June 9, 2005, before my client was called as a witness, I became aware that the court had previously disclosed some, but not all of the documents that I had previously delivered to the court on the dates listed in paragraph 2. One June 9, 2005, the court also delivered to all counsel more documents that were delivered to the court on the date set forth in paragraph 2. the court commented that it had gone through the documents referred to in paragraph 2, and disclosed to counsel all documents that it believed were not duplicative of prior discovery already in the hands of counsel. Because I believed the court had disclosed all the documents referred to in the subpoena, I did not deliver the subpoenaed documents to defense counsel on June 9, 2005.
7. On Tuesday, June 32, 2005, while Ms. Schmidt was testifying and being cross examined by deputy district attorney Stoen, at the point when Mr. Stoen was challenging the veracity of Ms. Schmidt regarding the call allegedly made to my client by Ms. Marlow on either January 25, 2005, or January 26, 2005, I realized that I had seen the faxed documents referred to by my client in her testimony. I immediately reviewed the subpoenaed documents that I had kept in my file.
8. I immediately recognized the significance of attachment "A". Attachment A is a 19 page stapled document which was faxed to my client on January 26, 2005 by Ms. Marlow. The 19 page document has the originating fax number, the name or the originating fax location, the number of pages and the time and date of the fax. On the first page, the fax information did not copy on the page, but on the other
_____2
pages 2/10 through 19/19 all of the fax information does appear. The pages bear the following "fax" information on the top "707-(phone number omitted here in this post) , Humboldt County J., Humboldt County Jury Services, 5:31:55 p.m. through 5:45:38 p.m., 1-26-2005"
9. The contents of attachment A are as follows:
a. Page one is a letter from Tim Stoen to Darlene Marlow requesting the Grand Jury comply with discovery provisions under the penal code.
b. Pages "2/19" is a one page letter from Mr. Stoen to Mr. Bragg.
c. Pages 3/19-7/19 is an unsigned protective stipulation and order drafted by the district attorney's office regarding the August matter.
d. 8/19 is a one page letter from Darlene Marlow dated 1/10/05 entitled "sent to the chair or the legal committee of the Grand Jury Association 1/5/05" in which Ms. Marlow wrote that "We believe the integrity of this Grand Jury, as well as the entire Grand Jury System, has been placed in jeopardy" by the mandated disclosure of Grand Jury information caused by the accusation..
e. Pages 9/19-10/10 is a two-page document. the first 1 1/3 page is entitled "Why the Foreperson has volunteered to go to Jail." It describes in separate paragraphs: 1.) "why the attorney for the targeted public official wants the documents.", 2.) "Why the District Attorney believes the Grand Jury has to give up the documents.". 3.) "Why I will not cough up the documents.", 4.) "Who can help" and 5.) "what may happen.
f. Pages 9/19-10/19 approximately 2/3 of the remaining page 10/19 is entitled "Given to Timothy O. Stoen, Humboldt County district attorney's office 1/5/05 Pages 9/19 and 1/19 are signed "Sincerely, Darlene Marlow, Foreperson."
10. Also part of Attachment A are pages 11/19-13/19. These three pages are a letter from Ms. Marlow to the court. On each of these pages faxed to my client on 1/26/05, at the bottom of the pages is the handwritten reference "1/24/05, Marlow
__________3
to the court." On page 11/19 on the top of the page is handwritten. Judge Feeney original returned to me without reading." This page starts out with the phrase "may it please the court."
11. On page 12/19-13/19 of Attachment A, Ms. Marlow describes what the "DA and ADA told the Grand Jury and the Presiding Judge." It states:
"1. Their document would remain secret."
"2. Their witnesses would not be identified without notice."
"3. Any complainants would be considered confidential informants and thus protected."
"4. Discussions with the DA and ADA were secret, as they were covered by attorney client privilege."
"5. Documents, emails, memos. letters. strategy discussions and materials exchanged between the grand jury and the DA and ADA would be protected by attorney client privilege."
"6, There was no need for the DA and ADA to erect a "concrete wall" between the Grand Jury's investigation and the accusation proceedings"
"7. There was no need to follow the procedures of the recent Sheriff Renner investigation, which resulted in felony charges after a Grand Jury merely issued a report about its investigation and the former DA then convened a special criminal Grand Jury to issue indictments."
"8. The accusation documents would be sealed by a motion of the ADA at the direction of the Grand Jury."
"9. The accusation would be civil and not a criminal proceeding..."
"10. (handwritten) the DA and ADA would do the accusation."
12. On page 12/19 through 13/19 of Attachment A, Ms. Marlow continues in her letter to the court which was returned unread and which was faxed to Judith Schmidt by Ms. Marlow on 1/26/2005. She states that"
"None of these things happened the way the DA and ADA had assured
______4
the Grand Jury they would."
"1. Now the documents the Grand Jury and Presiding Judge were promised would always be kept secret are maybe released, even redacted, by Court Order which the ADA not only did not oppose, but sought."
"2. Witnesses have been identified publicly."
"3. the complainant was identified to the defendant's attorney by the ADA in April with notice to neither the Grand Jury not to the complainant..."
"4 and 5. The DA and ADA have sought release of records, memos of conversations, documents and attorney work product that the Grand Jury thought were protected by attorney client privilege. Neither the Grand Jury nor the Presiding Judge was notified that the ADA planned to waive this privilege. Grand Jurors are not lawyers, but assumed the privilege was inviolate or at he very least, they would be told of any change."
"6. Research indicates that accusation proceedings conducted in other counties are done very differently. The Grand Jury provides the DA with the information about the alleged violations and possible witnesses. The DA then does an investigation and provides evidence back to the full Grand Jury in an accusation proceeding. This "concrete wall" protects all the witnesses and documents the Grand Jury collected; they are not subject to release at trial."
"7. If the DA and ADA has explained the jeopardy the records and witnesses were put in by the accusation proceeding the way they planned to conduct it, the Civil Grand Jury would have preferred to write a scathing final report and the the DA call a special Criminal Grand Jury to bring an indictment. This would have protected the secret sources which the Grand Jury needs to protect in order to conduct their investigations."
"8, The ADA did not seal the accusation proceeding record as he had agreed to do, nor did he so advise the Grand Jury."
__________5
"9. The ADA made motion to have the case handled as criminal instead of civil, which was granted by the court."
"10. (handwritten) The ADA never told the Jury he asked County Counsel to stay out."
13. At the end of page 3/19 of Attachment A, Ms. Marlow continues in her letter to the court which was returned unread and which was faxed to Judith Schmidt by Ms. Marlow on 1/26/05. She states that:
" The Grand Jury has been badly used by the DA and ADA. Everyone makes a mistake occasionally, but the entire matter has been mishandled from start to finish and imperils the credibility and integrity of the Grand Jury System in Humboldt County."
14. Pages 12/19 through 13/19 of Attachment A, referred to above which was faxed to Judith Schmidt by Ms. Marlow on 1/26/2005 is signed in handwriting in the following manner:
"Sincerely, Darlene Couch Marlow
Recording Secretary, 2003-2004 Grand Jury
Foreperson 2004-2005 Grand Jury
On page 13/18 of Attachment A bears the handwritten signature "Darlene Marlow (phone numbers left out of this web posted version of this transcript)
15. After review of the documents that I received from the court as copies to the prosecutions and the defense, I realized that the 19 pages in attachment A had not been given to either counsel. I believe that the court mistook them for simply copies of previously disclosed documents as the issue of the fax and date received had not been previously raised.
16. The entire attachment A is essential to these proceedings. The fax information provided on each of the pages at the top of the document because it corroborates Ms. Schmidt's testimony that
_____6.
a. She received a telephone call from Ms. Marlow on either 1/25/05 or 1/26/05 in which Ms. Marlow first raised the issue of the email in Ms. Schmidt's possession and"
b. Ms. Schmidt received a number of faxed documents from Ms. Marlow either on the same date of the phone call or the day after.
17. Attachment A is further significant to these proceedings as the letter to the court signed by Ms. Marlow and marked "Judge Feeney original returned to me without reading" expressly corroborates Ms. Schmidt's testimony that"
a. The DA and ADA told the Grand Jury that everything would remain secret if they went forward with the accusation.
b. That witnesses would not be identified.
c. That the DA and ADA disclosed confidential Grand Jury information without the permission or notification to the Grand Jury.
d. That the DA and ADA affirmatively sought the release of the information they assured the Grand Jury was totally protected by "attorney client privilege."
e. That the ADA expressly told the Grand Jury that he was "their attorney."
f. That the ADA waived the attorney-client privilege he had promised the Grand Jury against the wishes of the Grand Jury, but in favor of his office which clearly had a conflict in the matter.
g. That the grand jury accusation process was being run by the DA and ADA.
h. That the DA did not seal the record after promising the Grand Jury that he would nor did he advise the Grand Jury that he didn't seal it.
i. That the Grand Jury was badly used and misled by the DA and ADA and that the mishandling of the entire accusation process undermined the integrity of the Grand Jury System in Humboldt County.
18. Attachment A is further significant to these proceedings as it also corroborates Ms. Schmidt's testimony that the individual passages that deputy district attorney
_______7
Stoen had her read into the record on June 21, 2005 and of which she commented that were taken out of context and must be understood with all other communications, emails and letters, were in fact deliberately taken out of context.
Dated: June 22, 2005
Allison G. Jackson CSB # 157078
Attorney for Judy Schmidt
_________8
(Note: the following are the 19 pages from Attachment A.First is a letter from Stoen to Darlene Marlow written on Office of the District Attorney Humboldt County letterhead
Paul V. Gallegos
District Attorney
Darlene Marlow, Foreperson
2004-2005 Humboldt Grand Jury
Re: People vs. August, Case # CV 040307 - Request to Allow Defendant's Inspection of Grand Jury Tape Recordings, Produced Documents, and Obtained Documents.
Dear Ms. Marlow"
Our office hereby requests that the Grand Jury comply with the Defendant's Discovery Request, under the Penal Code, for the following items in the custody of the Grand Jury:
1. "Any and all tape recordings of an statements or testimony given in any committee, subcommittee, or individual representing the Humboldt County Grand Jury concerning any investigation of Deborah August."
2. " Any and all documents produced by an member or representative of the Humboldt County Grand Jury as the result of any investigation of Deborah August including, but not limited to, reports, summaries, notes, e-mails, memoranda and correspondence."
3. "Any and all documents obtained by an member or representative of the Humboldt County Grand Jury as the result of any investigation of Deborah August including, but not limited to, reports, summaries, notes, e-mails, memoranda and correspondence."
Because an accusation is treated as a "criminal proceeding," our office is required by law to provide the Defendant inspection rights to all documents in our own custody and control, which includes documents previously furnished us by the Grand Jury. Once charges are filed, the right to a fair trial overrides state confidentiality statutes. (Davis v. Alaska 415 U.S. 319 (1974).
Since Grand Jury secrecy remains critically important, however, I am seeking a stipulation and protective order before releasing the confidential documents furnished by the Grand Jury to us. As part of this process, I am hereby requesting you to approve the terms of the enclosed proposed protective order and, after it is signed by a judge, to allow Defense Counsel to inspect and copy as indicated.
Sincerely,
Timothy O Stoen
cc: County Counsel; William R. Bragg, Esq.
(Identifying fax and date information)
Page 1
______
Next page is also on District Attorney's Office letterhead:
Paul V. Gallegos
District Attorney
January 3, 2005
BY FAX ONLY: (phone number (Bragg) and (phone number) (Rael)
William R. Bragg, Esq.
Roberts, HIll, Bragg, Angell and Perlman LLP
434 Seventh Street
Eureka, CA 95502
Re: People v. August Case # 040307 - Request for Stipulation for Protective Order
Dear Mr. Bragg:
I am preparing a response to your Request for Production of Documents, which I am treating as in informal request under the Penal Code.
I want you to have all of the Grand Jury materials you request in order to assure your rights to a fair trial, but I also want to honor the Grand Jury's legitimate concern for secrecy.
Most of the documents you have requested are contained in a green binder in my office entitled "2003-2004 Grand Jury of Humboldt County Confidential Investigation Materials."
I am enclosing herewith a proposed stipulations and protective order. Please look it over and let me know is it is acceptable. I have also submitted same to the Grand Jury and to the County Counsel for their approval. If everyone approves, I can submit the same to Judge Feeney for his signature on the order and have these materials copied for you ASP. Please advise.
Very truly yours,
Timothy O. Stoen
Enc (1) Proposed Stipulations and Protective Order; (2) Letter to Grand Jury Foreperson
(Identifying fax and date information) Page 2 of 19
_________
Following page has GJ fax and date info at the top and reads:
PAUL V. GALLEGOS SBN 161408
District Attorney of Humboldt County
TIMOTHY O. STOEN, SBN 37272
Assistant District Attorney
825 Fifth Street, 4th Floor
Eureka, CA 95501
(phone number)
Attorneys for Plaintiff
SUPERIOR COURT OF THE STATE OF CALIFORNIA, COUNTY OF HUMBOLDT
THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff. vs. DEBORAH G. AUGUST. also known as DEBI AUGUST, Defendant
Case No CV 040307
STIPULATION AND PROTECTIVE ORDER
THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff, acting by and through their attorney, the District Attorney for the County of Humboldt, and DEBORAH G. AUGUST, Defendant, acting by and though her attorney, William R. Bragg, hereby stipulate:
I.
RECITALS
A. Defendant has made a discovery request under the California Penal Code for the following documents in the possession, care, custody, or control of the 2004-2005 Grand Jury of the Humboldt County Grand Jury and of the Office of the District Attorney
1. Any and all tape recordings of an statements or testimony given to any committee, subcommittee, or individual representing the Humboldt County Grand Jury
__________ Page 3 of 19
concerning any investigation of Deborah August.
2. Any and all documents produced by an member or representative of the Humboldt County Grand Jury as the result of any investigation of Deborah August including, but not limited to, reports, summaries, notes, e-mails, memoranda and correspondence.
3. Any and all documents obtained by an member or representative of the Humboldt County Grand Jury as the result of any investigation of Deborah August including, but not limited to, reports, summaries, notes, e-mails, memoranda and correspondence.
4. Any and all documents provided to any representative of the Humboldt County District Attorney's Office by the Humboldt County Grand Jury, including but not limited to any committee, subcommittee or individual serving on said Grand Jury or any representative thereof.
B. The aforesaid documents were generated by the 2004-2005 Grand Jury of Humboldt County pursuant to its civil "watchdog" function prior to their decision to bring an Accusation proceeding against the Defendant.
C. Witnesses were interviewed, and documents obtained, by the aforesaid Grand Jury based on its understanding and representations that the Grand Jury and its members would abide by all secrecy obligations under the law.
II,
AGREEMENT
Pursuant to the Defendant's "fair trial" rights to discovery under the U.S. and California Constitutions and the above stipulation, Plaintiff and Defendant are willing for the Defendant to
People v, August - Stipulation and Protective Order Page 2
____________Page 4
be able to inspect and copy the aforesaid documents subject to a protective order being issued by the Superior Court having the following terms:
1. Such Tape recordings and documents shall be disclosed only to (1) Defendant, (2) her counsel and "litigation team,: including investigators, and (3) such persons whom defendant's counsel has a good faith belief will be testifying at trail, and then only to the extent relevant to their testimony;
2. Such tape recordings and documents shall be used only for legitimate purposes of the Accusation proceedings;
3, All such tape recordings and documents, and any and all copies made thereof, shall be returned to the Grand Jury or the District Attorney's Office at the time this case has become final; and
4. Defendant's Counsel shall take all reasonable steps to protect such tape recordings and documents from any unauthorized use or disclosure.
Dated: January ___, 2005
Paul V. Gallegos
District Attorney for the County of Humboldt
by_________
Timothy O. Stoen
Assistant District Attorney
Attorneys for Plaintiff
The People of the State of California
Dated: January ____, 2005
William R. Bragg
Attorney for the Defendant
Deborah G. August
People v. August - Stipulation and Protective Order Page 3
(NOTE: The faxed document is unsigned)
____________Page 5 of 19
ORDER
GOOD CAUSE APPEARING, IT IS HEREBY ORDERED:
A. Pursuant to the Defendant's "fair trial" rights to discovery under the U.S. and California Constitutions, the 2004-2005 Grand Jury for Humboldt County and the Office of District Attorney are ordered to allow the Defendant and her Counsel to inspect and copy the following tape recordings and documents in their possession, care, custody, or control:
1. Any and all tape recordings of an statements or testimony given to any committee, subcommittee, or individual representing the Humboldt County Grand Jury concerning any investigation of Deborah August.
2. Any and all documents produced by an member or representative of the Humboldt County Grand Jury as a result of any investigation of Deborah August including, but not limited to, reports, summaries, notes, e-mails, memoranda and correspondence.
3. Any and all documents obtained by an member or representative of the Humboldt County Grand Jury as the result of any investigation of Deborah August including but not limited to reports, summaries, notes, e-mails, memoranda and correspondence.
4. Any and all documents provided to any representative of the Humboldt County District Attorney's Office by the Humboldt County Grand Jury, including, but not limited to any committee, subcommittee, or individual serving on said Grand Jury or any representative thereof.
B. Inspection and copying of the aforesaid tape recordings and documents shall be done upon the following terms:
People v. August Stipulation and Protective Order Page 4
______________Page 6 of 19
next page with identifying fax and phone number at the top
1. Such tape recordings and documents shall be disclosed only to (1) Defendant, (2) her counsel and "litigation team", including investigators, and (3) such persons whom Defendant's counsel has a good faith belief will be testifying at trial, and then only to the extent relevant to their testimony:
2. Such tape recordings and documents shall only be used for the legitimate purposes of Accusation proceedings:
3. All such tape recordings and documents, and any and all copies made thereof, shall be returned to the Grand Jury or the District Attorney's Office at the time this case has become final; and
4. Defendant's counsel shall take all reasonable steps to protect such tape recordings and documents from any unauthorized use or disclosure.
Dated: January _____, 2005
JUDGE OF THE SUPERIOR COURT
People v. August - Stipulation and Protective Order Page 5
__________ page 7 of 19
next page
(header also has identifying fax and date information)
titled:
Sent to the Chair of the Legal Committee of the Grand Jury Association 1/5/05
An accusation proceeding initiated by the 2003-2004 Grand Jury against a local city councilwoman is currently pending in the Humboldt County Superior Court (People v. August, Case No. CV 040307). It is set for trial on February 22, 2005. The case is being prosecuted, defendant is accused of (1) malfeasance conflict of interest for acting as the agent for the developer of a subdivision subject to city council approval; (2) willful or corrupt misconduct in office consisting of the failure to disclose income in annual Form 700 statements of economic interest; and (3) malfeasance contempt of the Grand Jury secrecy admonition. The penalty sought for all counts is removal from office.
I have been informed by the District Attorney's office that the defendant's attorney has requested the production of broad categories of documents and other materials in the possession of the Grand Jury relating to its investigation of the defendant, which ultimately led to the accusation against her.
The defendant's attorney has also requested the production of documents and other materials which the Grand Jury gave to the District Attorney's office to enable it to evaluate the case against the defendant and to advises the Grand Jury whether there were sufficient and proper legal grounds for proceeding with the accusation. Some of these documents are public records. but many are confidential Grand Jury investigation materials that were given to the District Attorney's office only after the District Attorney advised the Grand Jury (1) that the relationship with respect to the advice being sought was that of attorney and client, and (2) that all communications between the District Attorney and the Grand Jury in connection with this request for advice would be protected from disclosure under the attorney-client privilege. The confidential investigation materials include sensitive items such as the citizen's complaint form against the council woman, witness statements, and grand jurors' e-mail communications with each other.
The District Attorney's office not only has requested that the Grand Jury provide the documents in its possession, but has also advised us that: "Because an accusation is treated as a "criminal proceeding," our office is required by law to provide the Defendant inspection rights to all documents in our own custody and control, which includes documents previously furnished us by the Grand Jury. Once charges are filed, the right to a fair trial overrides state confidentiality statures. (Davis v. Alaska, 415 U.S. 319 (1974)"
The District Attorney's intent is to provide all these documents to the defendant's attorney pursuant to a stipulation and protective order, which he believes is sufficient to protect the Grand Jury's secrecy. We do not share his belief, and are adamantly opposed to the release of any of the documents that are not public record, and which were not previously introduced as evidence by the District Attorney in the Grand Jury hearings which proceeded the issuance of the accusation.
We believe the integrity of this Grand Jury, as well as the entire Grand Jury system, has been placed in jeopardy by these circumstances and we request you legal expertise with respect to both the law and the actions you believe we should take to protect the confidentiality of our records.
Sincerely,
Darlene Marlow, Foreperson
2004-2005 Grand Jury of Humboldt County
1/10/05
( added handwritten comment: Answer: do what County Counsel advises )
________________Page 8 of 19
next page: title:
Why the Foreperson has volunteered to go to Jail
Because the Accusation defendant's attorney and the District Attorney want the Grand Jury to produce secret Grand Jury documents, tapes, testimony, e-mails, etc. to the public official accused of corruption in the Accusation which goes to trial Feb. 22.
If I am ordered to produce the documents without the Grand Jury being given a chance to argue its side, I will refuse. If I am ordered to produce the documents after an adverse lower court ruling and before an appellate or CA Supreme Court can rule, I will refuse. If I refuse a Judge's order, I am subject to going to jail.
Why the attorney for the targeted public official wants the documents: Allegedly for her to confront her accuser(s) and be able to impeach any testimony given at trial if it differs from that given to the Grand Jury either in committee and/or in the Accusation Proceeding.
Why the District Attorney believes the Grand Jury has to give up the documents: Because of the Sixth Amendment to the Constitution giving defendants the right to confront heir accusers; Because much of the material has already been released as part of the Accusation Proceeding transcript, which was not secret after it was completed; Because a U.S. Supreme Court Case (Davis v. Alaska) says criminal Grand Jury information can be unsealed if the benefit to the defendant is greater than the detriment to the person named in the secret documents.
Why I will not cough up the documents: Grand Jury secrecy to which all Grand Jurors swear; The judge's charge of secrecy at empanelment; the Grand Jury during committee investigation told witnesses their testimony would be kept secret; the accuser of the official is the Grand Jury and not any individual, so she is getting her Sixth Amendment right; The case of Davis v. Alaska upon which they are relying says the juvenile record of one witness can be unsealed so a criminal defendant may impeach his testimony which puts the defendant at risk of jail and causes embarrassment to the witness, whereas this case pits 150+ years of Grand Jury secrecy against the desires of one public official whose only punishment should she be found guilty would be removal from office; The deleterious effect on future witnesses to the Grand Jury should materials be released; The deleterious effect on future volunteers to be Grand Jurors who must promise to keep deliberations secret but know they could be demanded to reveal those deliberations.
Who can help? The County Counsel has not yet said whether she can support - and advocate for - the Grand Jury's' position. She has been advised that if she cannot, the Foreperson will approach the Presiding Judge and so state, tell the judge that the DA has a conflict because they support the release of the documents, and request permission to hire outside counsel to argue the Grand Jury's position that Grand Jury secrecy applies. The California Grand Jurors Assn has been approached to help with this matter.
What may happen: If I am ordered to produce the documents and refuse, I will hide them. There is no requirement to maintain Grand Jury materials in the courthouse. i will tell no one where they are, so anyone taking my place could truthfully say they could not produce them.
1/10/05
___________ page 9 of 19
I have met with Tim Stoen and we are attempting to negotiate a possible compromise in which a Judge could examine the disputed documents in his chambers and certify to the defendant's attorney that nothing exculpatory and/or material is contained within. This would be only for the items the DA already has where names need to be redacted. I am not yet convinced that this is appropriate, however, and would not agree to it without a better understanding of the law and precedents. Furthermore, I would not agree to give up the documents still in the Grand Jury's possession.
Given to Timothy O. Stoen Humboldt County District Attorney's Office 1/5/05
I am responding to your January 3, 2005 letter requesting the Grand Jury's approval of the proposed stipulations and protective order concerning the release of confidential documents that were provided to you by the Grand Jury in connection with its investigation Debi August. I do not approve of either document.
First, I have grave concerns about releasing any of the Grand Jury materials identified in paragraphs 1 through 3 of the 'Recitals' section of the proposed stipulation and protective order, with or without a protective order. This is a very serious matter, as I am sure you understand, and I must obtain independent legal advice regarding my obligations in these circumstances. Until I am satisfied that it is appropriate to release these materials, I cannot and will not do so.
Second, as to your release of the materials identified in paragraph 4 of the "Recitals" section (which includes the documents contained in the green binder entitled "2003-2004 Grand Jury of Humboldt County Confidential Investigation Materials"), I must remind you that these documents were provided to you with the express understanding that many of them were highly confidential Grand Jury documents that would be protected from disclosure as part of privileged attorney-client communications between the Grand Jury and the District Attorney's office as it's legal adviser. Specific advice and assurance to that effect were sought by the Grand Jury, and were given, in the initial meeting between the Grand Jury and your office.
Therefore, it is my position, at least for the time being, that the materials identified in paragraph 4 of the "Recitals" section are privileged attorney-client communications (except for those items that are public record). Again, I am seeking legal advice in this regard but, in the meantime, you are instructed not to provide those documents to anyone pending further instructions from me.
I trust you will be able to obtain the cooperation of Judge Feeney and Mr. Bragg in accommodating my need for a brief delay while I obtain legal advice that will enable me to provide a definitive response to the discovery request. I do apologize, but I believe any inconvenience this may cause is far outweighed by the gravity of this matter.
Sincerely,
Darlene Marlow, Foreperson
1/10/05
_______________ page 10 of 19
Next page has GJ fax and date info at top
and handwritten note: Judge Feeney returned to me without reading original
May it please the Court:
The Government Code provides three legal advisors for the Grand Jury:
the County Counsel
the District Attorney
and the Presiding Judge
plus outside counsel with permission
and, under special circumstances, the attorney General
Since the District Attorney is diametrically opposed to the position of the Grand Jury, and the Presiding Judge has declared himself unable to assist because this matter is coming on for trial before the Bench of which he is Presiding Judge, and the County Counsel has now declared a conflict because her two clients (the District Attorney and the Grand Jury) are in opposition, I again appear before you bereft of legal counsel.
Thus I hereby request permission to hire outside counsel to represent the interests of the Grand Jury before this Court in opposing any attempts by the District Attorney, the Defendant or her Attorney, or this Court to release secret Grand Jury documents. The Grand Jury was impaneled as a civil Grand Jury and, so far as it knew, never changed into any other sort of Grand Jury and never intentionally put its documents in jeopardy of being released.
When the Grand Jury found what appeared to be willful misconduct on the part of an elected city official, it perused the scanty material available about the Accusations process and queried its legal advisers. The Grand Jurors are not attorneys. they are lay people who give a year's hard work for only a little money for gas to help their county and cities increase the efficiency and effectiveness of their governments and to provide a venue for whistle-blowers.
The County Counsel does not handle Accusations, so the District Attorney and the Assistant District Attorney advised the Grand Jury. Hours were spent with them by the Foreperson, the Jurors, and then-Presiding Judge Miles, discussing the evidence and procedures and preserving Grand Jury secrecy.
(handwritten) 1/24/05 Marlow to Court
__________ page 11 of 19
As you can see from the contemporaneous memos, e-mails, letters, and minutes, the DA and ADA told the Grand Jury and then-Presiding Judge that
1. Their document would remain secret.
2. Their witnesses would not be identified without notice.
3. Any complainants would be considered confidential informants and thus protected.
4. Discussions with the DA and ADA were secret, as they were covered by attorney client privilege
5. Documents, emails, memos. letters. strategy discussions and materials exchanged between the grand jury and the DA and ADA would be protected by attorney client privilege.
6, There was no need for the DA and ADA to erect a "concrete wall" between the Grand Jury's investigation and the accusation proceedings
7. There was no need to follow the procedures of the recent Sheriff Renner investigation, which resulted in felony charges after a Grand Jury merely issued a report about its investigation and the former DA then convened a special criminal Grand Jury to issue indictments.
8. The accusation documents would be sealed by a motion of the ADA at the direction of the Grand Jury.
9. The accusation would be civil and not a criminal proceeding...
10. (handwritten) the DA and ADA would do the accusation."
"None of these things happened the way the DA and ADA had assured the Grand Jury they would."
1. Now the documents the Grand Jury and Presiding Judge were promised would always be kept secret are maybe released, even redacted, by Court Order which the ADA not only did not oppose, but sought.
2. Witnesses have been identified publicly.
3. the complainant was identified to the defendant's attorney by the ADA in April with notice to neither the Grand Jury not to the complainant who has suffered public opprobrium being snubbed by other citizens of his town and watching his wife have trouble at her job where she works for the person whom the defendant is accused of corruptly trying to help with her land development. This is not right.
(handwritten: 1/24/05 Marlow to Court
____________ Page 12 of 19
4 and 5. The DA and ADA have sought release of records, memos of conversations, documents and attorney work product that the Grand Jury thought were protected by attorney client privilege. Neither the Grand Jury nor the Presiding Judge was notified that the ADA planned to waive this privilege. Grand Jurors are not lawyers, but assumed the privilege was inviolate or at he very least, they would be told of any change."
6. Research indicates that Accusation proceedings conducted in other counties are done very differently. The Grand Jury provides the DA with the information about the alleged violations and possible witnesses. The DA then does an investigation and provides evidence back to the full Grand Jury in an accusation proceeding. This "concrete wall" protects all the witnesses and documents the Grand Jury collected; they are not subject to release in a later trial.
7. If the DA and ADA has explained the jeopardy the records and witnesses were put in by the accusation proceeding the way they planned to conduct it, the Civil Grand Jury would have preferred to write a scathing final report and the the DA call a special Criminal Grand Jury to bring an indictment. This would have protected the secret sources which the Grand Jury needs to protect in order to conduct their investigations.
8. The ADA did not seal the accusation proceeding record as he had agreed to do, nor did he so advise the Grand Jury.
9. The ADA made motion to have the case handled as criminal instead of civil, which was granted by the court.
10. (handwritten) The ADA never told the Jury he asked County Counsel to stay out.
The Grand Jury has been badly used by the DA and ADA. Everyone makes a mistake occasionally, but the entire matter has been mishandled from start to finish and imperils the credibility and integrity of the Grand Jury System in Humboldt County.
Sincerely, Darlene Couch Marlow
Recording Secretary, 2003-2004 Grand Jury
Foreperson 2004-2005 Grand Jury
(handwritten: Darlene C. Marlow
Phone numbers
1/24/05 Marlow to Court
__________ Page 13 or 19
If the court chooses to treat the matter as a criminal indictment instead of a civil accusation and thus subject to record release, I hereby respectfully request that the Court stay the execution of its Order so I may get outside counsel to ask for an emergency stay from the Appellate Court.
(handwritten) Please give the records back.
(The judge granted County Counsel's request to be excused for conflict with another client. He agreed to hire outside counsel to argue the Grand Jury's positions, and promised he would not give up any records until those arguments are made. He refused to give up the items he has already spent 12 hours on as his work product, but let me have the rest.)
1/24/05 Marlow to Court
___________page 14 of 19
(handwritten) Tammy recusal 1/25/05 (Tammy Falor)
This weekend I read the one remaining file that I had not had access to before the last hearing due to the short time frame which the Grand Jury Foreman and I had to review and organize the files. From reading this file it became clear that in order to fully represent the Grand Jury in its quest to protect the civil grand jury records and process, my office would need to take a position adverse to another client which we cannot allow.
Aside from the contents of the Grand Jury file that creates this dissonance, there is also the fact that at the time the issue of under what scheme, civil or criminal, this case would proceed was decided, the Grand Jury who processed the accusation had no representation or presence in Court. The argument proffered by the Assistant District Attorney that was ultimately accepted by the Court, that this matter be pursued as a criminal matter, severely hampers the Grand Jury's pursuit of their interest in protecting their records and process. If the Court truly desires the Grand Jury have an opportunity to protect its records, the Grand Jury must have an opportunity to put forth its arguments as to why this proceeding should be conducted with civil procedures and not criminal procedures, a position that one would assume that the District Attorney would oppose.
To further underscore this situation, when, as a courtesy to the DA, it was disclosed that "due to procedural irregularities in the case, our office would be declaring a conflict," the Assistant District Attorney sent an E-mail to me, which I shared with the Grand Jury Foreperson, stating that the Assistant District Attorney "think(s) we have done this (balancing of five categories of duty) quite responsibly and appropriately...'" and may have implied that I am not familiar enough with the criminal system to understand the procedural issues in this case. ("The first two categories are not principles that arise in the every day life of a civil attorney.)
There is no escaping the conclusion that the Office of the County Counsel cannot continue in this matter, and that outside counsel must be appointed to vigorously defend the Grand Jury's interests in this matter.
___________ page 15 of 19
Problem with the Office of the County Counsel being appointed to represent the Grand Jury in this matter: in order to vigorously defend the Grand Jury records, information would need to be disclosed that would open areas of possible liability for the County.
The process was flawed from the beginning. One it appeared that the Grand Jury would pursue the regular civil grand jury report process should have stopped and the matter referred to the DA for his investigators to investigate. That way the accusation would be based on the DAs investigation and not on the testimony of people called in the regular civil grand jury process which gives an expectation of confidentiality.
There are no procedures and protocols for accusations that occur in Humboldt County. ADA Stoen has admitted to the Grand Jury that this process is new to him.
Because of apparent oversights by the ADA, the records of the regular Civil Grand Jury, as well as the records of the accusation proceeding have been place at risk. The records of the accusation were requested to be sealed by the Grand Jury. The ADA failed to act on this request and the records were not sealed. Despite repeated promises to the Grand Jury that their pre-accusation proceedings would remain confidential, the DA proceeded to treat the Grand Jury like his investigators, and then argued for criminal rules to apply in this accusation. In doing so placed these very records at risk of release by the court.
In the interests of equity, there should be created by the court, a delineation of the grand jury documents that were processed pre-accusation in the normal civil grand jury report writing function.
Equity demands that Mr. Wingo should be treated as a confidential informant since his original complaint was to a grand jury in a nonaccusation process about the planning Department in Fortuna with only brief mention of Debbie August.
What has complicated this issue is that the ADA has given the defense information that Mr. Wingo was the original complainant, but the ADA did so against the wishes of the Grand Jury.
If this were a "normal" process, waivers of privileges and a clean delineation of accusation documents would have occurred. The ADA would have all these documents with the Grand Jury only retaining a copy for defense of the Grand Jury. I would also be clear that teh ADA was calling all the shots, since the originating Grand Jury no longer is in existence. But in this case the ADA has maintained that this matter is a Grand Jury matter and even tried to go to the next year's Grand Jury to obtain more advice on how to proceed on the accusation proffered by the last year's Grand Jury.
So had the ADA evoked Evidence Code section 1040(b)? It all depends on if the court finds the ADA has the authority to waive the privilege.
Since there is not a lot of law on accusations, one may look to the process for complainants in code enforcement cases to remain anonymous. People v. Minor found that the case against the...
(handwritten County Counsel draft)
____________ Page 16 of 19
...defendant rested on the results of an independent investigations and the defendant's rights were therefore protected by his ability to cross examine the investigators and evaluate this documentary evidence.
So aside from the CI arguments, there are other privilege to assert as to the internal documents of the Grand Jury.
PRE-ACCUSATION MATERIAL:
Should be confidential under civil grand jury scheme - disclosure of Grand Jury materials is to be strictly limited (Daily Journal Code) otherwise there would be a chilling effect on testimony to the Grand Jury.
PRE- AND POST- ACCUSATION MATERIAL;
Official Information privilege (Evidence Code 1040) - these materials were acquired in confidence by a public employee in the course of his/her duty and not open or officially disclosed to the public. (In fact the ADA has not seen all these records.)
POST-ACCUSATION MATERIAL:
Attorney=Client - P.C. 934 & 935 provide that the Grand Jury may receive at all times advice and information from the DA. A client is a person who consults a lawyer for purposes of securing legal advice from him. (Evidence Code section 951).
Plus since the ADA treated the Grand Jury as investigators, their process became the ADAs work product created for the purpose of communicating with the ADA.
These arguments assume that the Court will accept that equity demands that these records be treated as civil records.
NO MATTER WHAT ALL NON RELEVANT PRIVILEGED GRAND JURY INFORMATION MUST BE DELETED.
- - - -
THE PROTECTIVE ORDER - the terms of the protective order for nondisclosure are adequate, but the order is deficient because it order release of all documents.
(handwritten: County Counsel draft)
____________ page 17 of 19
Page 18 is an email to Tammy Falor from Tim Stoen:
Falor, Tammy
From: Stoen, Tim
Sent: Tuesday, January 25, 2005 8:03 AM
To: Falor, Tammy
CC: Gallegos, Paul
Subject: Re: Grand Jury "Protocol" - People v. August
Tammy,
Thank you for your email.
Two points:
1. Unlike the Santa Clara case you reference, our Grand Jury had already obtained witness statements before ever contacting us. We therefore had no opportunity to have our investigators in charge at the outset. We never even knew Debi August was being investigated until Paul, Wes and I were called down to the Grand Jury and given that thick green binder of investigatory work already done. We were not the advisers to the Grand Jury during the time it was obtaining those witness statements.
2. Judge Feeney disagrees with the position that civil rules apply. He has officially ruled that discovery in this Accusation proceeding is to be governed by criminal rules. He did so on three grounds, including Government Code section 3071: "The trial shall be by a jury and conducted in all respects in the same manner as the trial of an indictment."
Again, we appreciate your willingness to help with future protocol.
Tim
---Original Message ---
From: Falor, Tammy
Sent: Monday January 24, 2005 8:20 PM
To: Stoen, Tim
CC: Gallegos, Paul
Subject: RE: Grand Jury "Protocol" - People v. August
Tim,
Since, according to the caption of your e-mail, your comments references the August case, and since I have not officially declared my conflict (I will do so at the court hearing tomorrow), I am going to copy, the Grand Jury Foreperson (as keeper of the records who as you are aware, I have been directed by the court to represent), with my response to this e-mail, an of course send a copy to Paul.
Your e-mail assumes that the way the accusation has proceeded is the only way an accusation can proceed. If you recall, before I was directed to appear in this matter, there was much discussion as to whether or not this accusation would have criminal or civil rules apply. The decision to have criminal rules apply totally changed the complexion of this case. I have been told by the Grand Jury Foreperson that the California Grand Jury Association takes the position that accusations are intended to be civil in nature. If this case had proceeded under civil rules, the criminal discovery principles would not be applicable. I also found that the 2001-2002 Santa Clara County Civil Grand Jury pursued an accusation that removed the mayor of Mountain View from office. Their process was much different from yours. The Grand Jury did not function as "part of the DAs team". The next paragraph is a quote from the Santa Clara County Civil Grand Jury's report.
"When the mayor, a member of the city council, repeatedly went directly to city staff to express opinions and urge actions rather than through the city manager, there was a violation of the charter. Several attempts by the city manager an city attorney to address this problem with the mayor failed to stop the conduct. The city manager was placed in a position of resolving the problem by going to the city council or by requesting an independent investigation by the district attorney's office. Choosing the latter, the district attorney's office conducted an investigation. After completing the investigation, the district attorney was convinced there was enough evidence to present a proposed accusation to the Grand Jury. This is the process required by the law. The district attorney must convince the Grand Jury there is a reasonable cause to that the accused is guilty of the allegation and should stand trial. If the Grand Jury agrees, it then issues a formal written accusation."
_________ page 18 of 19
As to the August case, one is "stuck" with the reality of the process as it has already occurred, but before implying that this method of pursuing an accusation cannot be improved upon ("I think we have done this quite responsibly and appropriately") for future accusations, a person may want to check with other District Attorneys in the State to discern how their processes have worked and to see if that process has occasioned less strife than has occurred in this case.
Since I will be out of this case as of tomorrow, I do not think it appropriate to put forth my theories of why and how the records of the Civil Grand Jury should be protected. The counsel that will be provided to the Grand Jury will be developing their own theories with no further input from this office.
I am not quite sure why you indicated that ("the first two categories are not principles that arise in the everyday life of civil attorneys"). If it is in reference to my legal career, perhaps you are not aware that I started my career as a Deputy Public Defender.
Tomorrow is an insanely busy day for me with multiple venues for me to attend to. As such, I doubt that we will be able to connect before I am due in Court in the August matter, and after my appearance (at which time I will declare a conflict). there will be no further need for us to discuss the August case.
When procedures and protocols are drafted for future accusations, if Paul chooses to request they be reviewed by this office, we will be more than happy to assist by reviewing those procedures and protocols.
Tammy
---Original message---
From" Stoen, Tim
Sent: Monday, January 24, 2005 6:33 PM
To: Falor Tammy
Subject: Grand Jury "Protocol" - People v. August
Tammy,
In response to your suggestion of preparing an Accusation protocol, I think it is a fine idea. I am recommending that our office do so.
As a reality check, however, it is important to realize the following: There is an inevitable waiver of some confidential grand jury "watchdog" materials when a Grand Jury proceeds with an Accusation. I repeat, inevitable. No "protocol" can prevent it.
This is because an Accusation requires a delicate balancing of at least the following five principles:
(1) The Brady v. Maryland criminal discovery obligation,
(2) "Johnson rule" exculpatory evidence known to the DA,
(3) Grand Jury confidentiality,
(4) Grand Jury-DA "attorney-client" privilege, and,
(5) Grand Jury's function as part of the DAs "litigation team."
The first two categories are not principles that arise in the everyday life of civil attorneys.
This balancing of five categories of duty, I'm sure you would agree, requires the complex drawing of lines.
I think we have done this quite responsibly and appropriately - of course, some appellate court will rule on that one way or the other, which I frankly welcome.
The following fact should be noted, we have withheld from defense counsel everything the Grand Jury provided us except the statements of witnesses who testified or who are necessary for trial.
Please let me know if you have questions or would like to discuss this further.
Thanks for always being helpful - and a friend to our office.
Cordially,
_______________ Page 19 of 19
###
