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Judge Harry Elias and DA Bonnie Dumanis

Recently San Diego County Superior Court judges including Judge Harry Elias have chastised prosecutors for the San Diego District Attorney’s office for violating the law by withholding potentially exculpatory evidence. He and other judges have dared to make decisions the DA didn’t support. DA Bonnie Dumanis thinks she knows how to handle such judges — refuse to try cases before them and try to push them out of criminal courts. Dumanis seemingly thinks the DA can control judges to make them do what she and her prosecutors want them to do by threatening their careers. But this is a clear violation of the separation of judicial and executive branches of government. It is also directly opposed to the interests of the public to ensure that citizens accused of a crime are given a fair and impartial trial.

Bicycle Theft: Prosecutors Hid that Fingerprint Doesn’t Match

Journalist Catherine Garcia of NBC San Diego has covered the problems cited by Elias in which prosecutors withheld evidence that showed fingerprints did not match the accused. Prosecutors say they have no obligation to disclose the existence of inconclusive fingerprint comparisons. Judge Elias did not agree.

(from Judge and DA in Ethics Spat)

In a recent bicycle theft trial, in which the defense argued the verdict should be overturned because of problems with discover, Judge Harry Elias criticized the prosecutors’ handling of fingerprint evidence and said the DA’s office has a bad reputation among some defense attorneys, and other judges.

Prosecutors, who insist they did absolutely nothing wrong in that case, filed a motion demanding Judge Elias should step down from the case because those comments reveal “a clear mindset of bias and prejudice.”

Judge Elias made a quick and very forceful decision at a hearing this week. He said he’s done absolutely nothing wrong, and will stay on the case.

Wrongful Conviction for Murder by Arsenic Poisoning

This isn’t the first time San Diego law enforcement has hidden evidence that cast doubt on the guilt of the accused. Another boycotted jurist, Judge John Einhorn, in 2008 was confronted with the “discovery” that new testing on the dead body of Todd Sommer who was supposedly killed by his wife via arsenic poison, a crime for which she was convicted, showed there was no arsenic present.

(from Judge under boycott from DA: No reason given for Einhorn action)

Over the past year, Einhorn has been at the center of two of the higher profile cases in San Diego. Sommer was convicted of murdering her husband, Todd, in 2007 by poisoning him with arsenic. She was granted a new trial in November of that year. Then in April 2008, new evidence was discovered — tissue samples of Todd Sommer that showed no traces of arsenic — and that led to prosecutors dismissing the case.

The retrial had been assigned to Einhorn. Allen Bloom, Sommer’s lawyer, pressed for the case to be dismissed in a way that would preclude prosecutors from ever charging Sommer again.

Cynthia Sommer was convicted of the murder based largely upon circumstantial evidence. Such “evidence” included her spending habits, that she received a life insurance payout, and got new breast implants and attended wild parties after her husband’s death. There was no evidence to show that she ever obtained arsenic.

Speculation is that the initial tests that showed very high levels of arsenic were due to contamination. A defense expert witness testified that the initial tests showing arsenic levels 1020 times normal were physiologically improbable and inconsistent. Given the track record of the district attorney’s office, one wonders if the evidence was really inadvertently contaminated.

San Diego DA: Pattern of Hiding Exculpatory Evidence

Judge Elias has stated the some San Diego judges believe the DA’s office is intentionally and deliberately withholding exculpatory evidence. As Greg Moran of the San Diego Union-Tribute reports:

(from Judge refuses to step down from case)

The veteran judge said at the time that the reputation in the courthouse of the prosecutor’s office was “not good,” largely because of several other cases in Vista in which evidence that should have been given to the defense was not.

Elias said some judges believe those to be “deliberate and intentional” omissions, which the District Attorney’s Office vigorously disputes.

The dispute erupted after Bowles’ conviction for burglary and theft. During a second, shorter trial to prove that Bowles had committed two previous “strike” offenses that would increase his sentence, defense attorney Sherry Stone contended that a forensic analysis of a single fingerprint on a pawnshop slip had not been disclosed.

Analysis of the print showed that it was inconclusive and could not be linked to Bowles. Numerous other prints on evidence, however, were connected to him and included in a written report. The defense contends that omitting information of the inconclusive print from a report on the fingerprints was wrong. Prosecutors say the information was included in a different exhibit and that there was no obligation to say so in the report on all the prints.

Dumanis Boycotts Judges to Bully Them

Writer Kelly Thornton of the Voice of San Diego recently published an article on what Dumanis & Company are trying to do to local judges who don’t do what they want.

(from D.A. Targets Third Judge for Boycott)

The San Diego County District Attorney’s Office has threatened to boycott another Superior Court judge over rulings that prosecutors found troubling, according to a personal account from the judge in question.
Laura Parsky, the third judge in four months to be targeted by the district attorney, related details of the possible boycott during a court hearing in a domestic violence case Jan. 15.

Parsky said it was her ethical duty to disclose that a district attorney supervisor had complained to the supervising judge in Chula Vista about some of her rulings, including decisions she made in the still-pending domestic violence case. The supervising judge, who handles ministerial matters such as assigning cases to other judges, then relayed these concerns to Parsky, along with a warning that the District Attorney’s Office may seek to disqualify her in future cases.

It is considered unethical for a party in a pending case to have communications with the judge without the other parties present. Although the prosecutor and Parsky had no direct communication in this case, Parsky was so concerned about the implications of the exchange that she consulted a state judicial ethics panel and was advised to formally disclose it.

She did so at the next hearing in the domestic violence case of defendant Michael Barron.

“The supervising attorney from the District Attorney’s Office … advised the supervising judge that the district attorney’s office may be exercising peremptory challenges against me based on that ruling and others,” Parsky said, referring in part to decisions in the Barron case.

Her comments are contained in a court transcript of the hearing. Barron’s defense attorney, Lynn Ball, subsequently filed a motion to disqualify the District Attorney’s Office because of “arrogant misconduct.”

Writer Randy Dotinga of the Voice of San Diego discussed the mechanics of how the DA is boycotting judges using peremptory challenges:

(from Explainer: So How Do You Boycott a Judge?)

For months now, an unexplained edict from District Attorney Bonnie Dumanis has forbidden county prosecutors from bringing new criminal cases before one particular Superior Court judge.

What gives? Can the DA just wave her hands and — voila! — a judge is blackballed? Yes.

It’s that simple, and it’s apparently been done before here.

But there are risks to boycotting a judge, and one expert suspects that Dumanis won’t play this card for long.

“I don’t think the office can afford to waste this free challenge in every single case,” said Jan Stiglitz, co-director of the California Innocence Project.

He’s referring to what he calls a “freebie” — the opportunity for a prosecutor or defense attorney to reject a judge in a criminal case without specifying a reason. It’s known as a peremptory challenge.

Elias Throws Out Trial Due to Prosecutorial Misconduct

Judge Elias may be targeted for more boycotting by Bonnie Dumanis. He’s dared to throw out the trial of Kenneth Bowles because he believes the prosecution willfully and intentionally withheld exculpatory evidence.

(from Evidence rules were violated, judge concludes: New trial ordered in three-strikes case)

In a 15-page ruling, Elias concluded that evidence of an inconclusive fingerprint match on a pawnshop slip that was part of the evidence against Bowles should have been given to defense attorneys.

Bowles had argued he was at a different pawnshop at the time the bicycle was taken. But prosecutors tied Bowles to the theft of the bike, relying in part on the pawn slip with the fingerprint that was determined to be inconclusive, Elias noted.

The case caused a stir in the courthouse because defense attorneys say it is an instance of failure to disclose key evidence, which has happened on several occasions.

Elias did not dismiss the case entirely, concluding that other evidence linking Bowles to the crime was strong enough that he probably would have been convicted. He also let one guilty verdict stand.

But Elias was not willing to excuse what he said was “willful omission of exculpatory evidence” that could have been favorable to Bowles’ defense. As a further penalty, he said prosecutors could not use the pawn slip as evidence in the retrial.

Bonnie Dumanis: A Threat to Innocent San Diego Citizens

While most citizens would like to see criminals punished appropriately, what Bonnie Dumanis and San Diego prosecutors are doing amounts to perverting justice and denying a fair trial to accused parties. The government already has huge advantages over anybody it accuses of a crime. It has nearly unlimited resources to fabricate, plant, and alter evidence. It can also hide evidence that doesn’t support accusations. Defendants deserve access to all of the real evidence, but they are not getting it due to prosecutorial misconduct.

It appears Bonnie Dumanis and her cohorts deny access to evidence because they believe that a “win” for the prosecution is more important than a fair trial and justice being served. In doing so and by then whitewashing these problems, Bonnie Dumanis has shown her true character and revealed that she’s not a suitable person to be heading the San Diego District Attorney’s office. The public would do well to remember that when considering whether to vote for her again.

Further Reading

Battle over evidence continues in 3-strikes case

VISTA: Battle brewing over evidence in criminal cases

DA Bonnie Dumanis boycotts Superior Court Judge John Einhorn

Judge under boycott from DA: No reason given for Einhorn action

The Septic System: Bonnie D.A.’ Mantis

Cynthia Sommer: the Long Road Back to Freedom

Widow Accused In Poisoning Awaits Fate