From:San Jose Mercury News
By Tracey Kaplan 12/9/14
SAN JOSE — In a choked-up voice, the Santa Clara County prosecutor fighting to have his 30-day misconduct suspension scrubbed from his record offered an emotional apology Monday for improperly withholding evidence until the brink of a gang murder trial.
Deputy District Attorney Daniel Carr’s mea culpa came on the last day of a public hearing to determine whether the county will reimburse him for all or part of the $16,000 in pay he was docked in 2012 when District Attorney Jeff Rosen forced him to take 20 unpaid work days. The gang trial was delayed for a year, partly as a result of his conduct, costing taxpayers thousands more in legal fees for eight indigent defendants
“I’m sorry for what has happened,” said Carr, his eyes welling up. “I made a mistake. I’m not proud of it. It’s embarrassing to me, it’s embarrassing to the office, it’s embarrassing to the state of California.”
Carr — no relation to former District Attorney Dolores Carr — said he should have asked his supervisor if he could work exclusively on the large case involving eight gang members, rather than labor through another complex homicide trial until about a week before he was to have turned all the evidence over in this case. He vowed he would never make the same mistake again.
Yet at one point, he also derided the discipline as a “lynching.”
In contrast, the county and District Attorney’s Office painted a completely different picture of Carr’s conduct. The suspension Rosen imposed two years ago, is the toughest punishment available short of a demotion.
“Mr. Carr made a conscious decision over the course of several years to purposely withhold evidence,” including the fact that a rusty knife listed on a police report was the likely murder weapon, Assistant District Attorney Terry Harman said. She added that Carr knew full well for a year that the trial date was a hard “go,” meaning it had to start in early 2011.
Under California law, prosecutors must turn over evidence at least 30 days before trial, though Rosen and many other district attorneys and judges in California expect it to be turned over far sooner, partly for efficiency’s sake. If prosecutors want to hold evidence back longer, they are required to get permission from a judge, which they did not do in this case.
Retired Judge Kevin Murphy has said he will issue a written recommendation next week to the county Personnel Board, which will have the final say over whether to overturn Carr’s suspension.
Carr also testified Monday that he waited until the last minute to turn over statements made by one of the defendants because he was trying to get the gang member to sign an agreement to testify, which he ultimately did. If the man had not agreed to become an informant, Carr said he still would have turned the statements over.
But Assistant District Attorney David Angel testified that Carr told him otherwise in 2011; Carr testified he does not recall meeting with Angel.
“Mr. Carr didn’t acknowledge making a mistake,” Angel said. “He said he didn’t turn (the statements) over because he doesn’t have to.”
During the four days Murphy heard the case, Carr’s main arguments came down to his contention that other gang prosecutors commonly withheld valuable evidence until the last minute and that Rosen was unfairly harsh on him compared to the way he has treated other lawyers’ missteps.
His lawyer, Mike Rains, also argued Monday that the suspension was politically motivated because Carr supported Dolores Carr’s re-election effort in 2010 against Rosen, who worked for her at the time as a homicide deputy.
Rains also argued that Carr deserved “progressive discipline,” such as a letter of reprimand in his file, (which Rosen gave another deputy in a narcotics case for failing to turn over a police dog’s records), rather than the maximum suspension because of Carr’s stellar record as a prosecutor for more 20 years.
But the Rosen administration contends that Carr’s conduct stood out for the sheer volume of withheld evidence, including concealment of the murder weapon; a judge’s finding that Carr had committed a “plain, clear violation; ” the need to reassign the case; poor record-keeping; and the subsequent delay of the trial.
Harman testified that she stood by her recommendation to Rosen that he impose the month-long suspension.
“There has been a belief that…this was just another day on the gang team,” Harman testified. “I don’t see it that way at all. This was a very big deal.”
