From: Inside Bay Area News
By Tracey Kaplan 11/3/14
SAN JOSE — Two years after veteran prosecutor Daniel Carr was suspended without pay for alleged misconduct, he will try to persuade a retired judge this week to rescind his monthlong suspension and reimburse him for the $16,000 in pay he lost after District Attorney Jeff Rosen found he had improperly withheld evidence from the accused until the brink of a gang murder trial.
Represented by one of the best lawyers in the Bay Area, Carr will argue disparate treatment — that Rosen came down too hard on him in contrast to the way he treats his compatriots in the Santa Clara County District Attorney’s Office, including his best friend and chief assistant Jay Boyarsky. To bolster his argument, Carr, no relation to former District Attorney Dolores Carr, will try to reveal for the first time how Rosen has punished other prosecutors, using redacted personnel records the county was forced to turn over to his attorney, Mike Rains.
County lawyers who are defending Rosen are equally adamant that Carr deserved the four-week suspension, the maximum penalty the elected district attorney could impose short of demoting or firing him. Rosen is expected to testify in defense of his decision during the three-day hearing at the County Government Center on Hedding Street. In the end, the county Personnel Board will have the final say on Carr’s appeal, after retired Judge Kevin Murphy issues a written recommendation.
The brouhaha started when Carr was disciplined in 2012 after violating a California law in 2011 that requires prosecutors to turn over evidence at least 30 days before trial. Rosen and many other district attorneys and judges in California expect it to be turned over far sooner, partly for efficiency’s sake.
But it wasn’t until 28 days before a group of eight suspected gang members was to stand trial that Carr began revealing a treasure trove of information to their attorneys, including a statement by a co-defendant taken three years earlier and the fact that the alleged murder weapon, a knife, had been discovered in 2008. The new information required some of the defendants to revise their strategies, contributing to the subsequent yearlong delay.
However, Carr claims other gang-unit prosecutors commonly withheld valuable evidence from defense attorneys until the last minute to protect witnesses and their families. Some prosecutors in the office also believe Rosen was out to get Carr, partly because he supported Dolores Carr’s re-election bid in 2010 against challenger Rosen, a veteran homicide prosecutor.
But Carr’s conduct stands out, according to Rosen’s 2012 disciplinary notice, for the sheer volume of withheld evidence, the judge’s finding that Carr had committed a “plain, clear violation,” the need to reassign the case and the inability because of poor record-keeping of the new prosecutor to know what evidence had been provided to the defense. The trial was eventually won last year by one of Carr’s colleagues on the gang team, David Pandori.
In addition, Carr at no time apologized or conceded he could have handled the case better, according to the notice, leaving the office with “no assurance … that you will not attempt to manage future cases in a similar manner.” Carr has been taken off the gang team and now has the less glamorous job of trying felony cases in South County.
Carr’s attorney declined to comment.
Last week, Rosen issued a brief written statement in response to questions from this newspaper about the Carr hearing, praising his staff and underscoring his 2010 campaign promise to share evidence early and fully with defense attorneys, to avoid having some prosecutors ignore judges’ orders and conceal evidence.
“As District Attorney, I was elected to pursue justice in a fair and ethical manner,” Rosen wrote. “That effort extends to victims, witnesses, and defendants. The vast majority of (185) prosecutors in my office exceed these appropriately high expectations. In the rare occasions when someone falls short, my duty is to hold them accountable.”
But Carr contends that he acted with the approval of his supervisors and Rosen himself when he withheld the evidence. Carr seems to be basing his claim about Rosen on the fact that the district attorney signed a wiretap application in the case 36 days before the trial date. In interviews with the Rosen administration, Carr’s supervisors, Dave Tomkins and Mark Duffy, indicated they did not know how much evidence Carr was withholding. They may be called upon to testify either by the county or Rains.
County lawyers may also try to block Rains from introducing evidence about how Rosen has treated other prosecutors or argue that the comparison isn’t valid because of the particular nature and scale of Carr’s transgression.
Some of Carr’s allies, for instance, find it unconscionable that Rosen reportedly did not even lightly punish his best friend and chief aide Boyarsky for his conduct in a case involving a sexually violent predator. In 2012, an appellate court slammed Boyarsky in a published opinion, finding he had committed a “pervasive pattern of misconduct” in a trial and overturning a jury’s decision to commit a convicted child molester to a state mental hospital. In August, the state Supreme Court rejected that ruling, identifying only one “clear instance” of misconduct by Boyarsky and another of “arguable misconduct.” But the justices found no reasonable probability that those instances affected the outcome or rendered the trial fundamentally unfair.
One other homicide prosecutor, Ted Kajani, not only withheld evidence recently in a cold-case killing but also had a secret, extramarital affair with the crime lab’s DNA expert, his chief witness, forcing Rosen to dismiss murder charges against two brothers. But Rosen hasn’t disciplined Kajani yet.