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Prosecutor can stay on death penalty trial

State justices back the Santa Barbara County deputy D.A. who had advised on film, 'Alpha Dog,' about the case.

May 13, 2008|Maura Dolan | Times Staff Writer

SAN FRANCISCO — When a Santa Barbara County prosecutor decided to give a filmmaker his files on fugitive Jesse James Hollywood, he figured that the publicity might help catch the accused killer.

Instead, the prosecutor's work on the film "Alpha Dog" spurred an appellate court to remove him from the case on the grounds that he participated in "the public vilification" of a man who was to stand trial for an alleged murder that could bring the death penalty.

The California Supreme Court on Monday unanimously decided that the appeals court went too far. The court said Deputy Dist. Atty. Ronald Zonen should have been permitted to stay on the case because a trial judge had not found that his actions endangered the defendant's right to a fair trial.

"That is not to say that Zonen can or should escape censure," Justice Kathryn Mickle Werdegar wrote for the court. "We find his acknowledged actions in turning over his case files without so much as an attempt to screen them for confidential information highly inappropriate and disturbing."

In three rulings Monday, the state high court overturned decisions that removed prosecutors from cases because of conflicts of interest. One of them involved another Santa Barbara County prosecutor who wrote a novel about a crime similar to one she was about to prosecute.

Citing the desire of many lawyers for notoriety, the court said both a prosecutor and a defense lawyer in a high-profile trial may have an interest in "burnishing his legacy."

"Success in high-profile cases brings acclaim," Werdegar wrote. "It is endemic to such matters."

In such cases, the public must rely on prosecutors to carry out their obligations fairly and justly, Werdegar wrote.

Zonen was not paid for consulting on "Alpha Dog," which was based on Hollywood's alleged kidnapping and alleged murder of Nicholas Markowitz, 15. The prosecution contended that Hollywood was a drug dealer in the San Fernando Valley who ordered Markowitz killed because of a dispute with the boy's older half-brother over drug money.

Zonen had agreed to postpone plans to write a book on the case, the court said, and the defense also had a hand in the movie. Hollywood's father served as a paid consultant, according to the court.

James E. Blatt, Hollywood's lawyer, said Monday's ruling "sends a wrong message to prosecutors and defense attorneys" and may be appealed to the U.S. Supreme Court.

"This is a very troubling decision because you have a prosecutor becoming a consultant, helping develop a screenplay, getting himself on film, obtaining a movie credit and at the same time being allowed to remain on the case," Blatt said.

The state high court also sided with Santa Barbara County Deputy Dist. Atty. Joyce Dudley, who wrote a novel, "Intoxicating Agent," about "a heroine prosecutor's decision whether to try a rape case involving an intoxicated victim," the court said. The book was released months before Dudley was scheduled to try a case with similar allegations.

Massley Harushi Haraguchi, the defendant, won an appeals court ruling that removed Dudley from his prosecution. Haraguchi charged that Dudley's book gave her an incentive to refuse to agree to a plea bargain because a trial would promote her book.

The appeals court ruled for the accused rapist, contending that Dudley's prosecution of a case would be "unseemly."

But the California Supreme Court said that "only an actual likelihood of unfair treatment, not a subjective perception of impropriety" can warrant removal of a prosecutor or a prosecutor's office.

The court cited a trial judge's finding that the timing of Dudley's book publication a few months before Haraguchi's trial was coincidental and that the fictional rape case was unrelated to Haraguchi's case.

Werdegar called these findings significant.

"Whatever financial incentives her novel created for Dudley, those incentives were not likely to alter how she handled the Haraguchi case," Werdegar wrote.

Still, the court said it did "not condone actions that place a prosecutor's literary career ahead of, or at odds with, her fealty to the fair and evenhanded pursuit of justice."

"Writers are often encouraged to 'write what they know,' but the prosecutor who follows that advice in ways that touch on pending matters may compromise her ability to carry out her duties to represent the People and to seek justice impartially," Werdegar wrote.

Santa Barbara County Senior Deputy Dist. Atty. Gerald McC. Franklin, who represented the prosecutors, said another prosecutor had already been assigned to Hollywood's case. Zonen prosecuted several co-defendants of Hollywood.

Franklin said the files Zonen gave the filmmaker could have been obtained elsewhere, but "looking back on it, it was probably not a good idea" that Zonen turned them over unscreened. Franklin was unsure whether Dudley would now prosecute the rape case.

"That happens to be the type of case she does rather well," Franklin said. "Joyce did nothing wrong. . . . She is a famously good lawyer, honest and ethical."

California Deputy Atty. Gen. David F. Glassman, who sided with the prosecutors in the case, said he was pleased with the rulings. He and other parties to the litigation said they were unaware of any complaint against Zonen to the State Bar.

"The Supreme Court's decision in this case does not refer the matter to the State Bar," Glassman said.

In a third case, the court overturned the removal of Los Angeles County Deputy Dist. Atty. Timothy Hu and other deputies from the child molestation prosecution of Humberto S. The prosecutors were removed for trying to prevent the defense from having access to the alleged victim's medical and psychological records.

The court said the prosecutors' advocacy did not amount to representing the alleged victim's mother or therapist, who also wanted the records kept private.

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maura.dolan@latimes.com

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