County prosecutors listed in 'misconduct' report

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Lane Liroff, a Santa Clara County deputy district attorney from Palo Alto, is among six county prosecutors whom judges found committed misconduct during a trial, according to a report by the Northern California Innocence Project at the Santa Clara University School of Law.

Other deputy district attorneys listed include Troy Benson, James Demertzis, Benjamin Field, Jaime Stringfield and Brian Welch.

Field’s listing was the most serious, alleging repeated misconduct, including failure to disclose exculpatory evidence in more than one trial that would have shown the defendant did not commit the crime. In September, the California State Bar Association suspended him from practicing law for up to five years, according to the association’s database.

Liroff’s error in a 1996 first-degree murder trial led to the conviction being tossed out in 2007 for “failure to disclose exculpatory evidence.” Liroff ran for a judgeship in 2008 but lost in a run-off election with San Jose attorney Diane Ritchie. He has no public record of discipline or administrative actions, according to the bar association. But state law limits what the association can tell the public, a spokesperson said.

Liroff did not return phone calls requesting comment.

The “Misconduct Study” looked at 4,000 state and federal appellate rulings regarding cases of prosecutorial misconduct between 1997 and 2009. Six hundred prosecutors were found to have committed acts of misconduct that ranged from technical errors to deception and hiding evidence.

The Innocence Project’s study revealed 707 cases in which courts explicitly found that prosecutors committed misconduct. In about 3,000 cases, the courts rejected the allegations and in another 282, the courts did not decide if prosecutors’ actions were improper; the trials were deemed otherwise fair.

Misconduct fell into two broad categories, either “harmful error” or “harmless error.” Harmful-error cases, the most egregious, resulted in misconduct that altered the fundamental fairness of the trial. But the study found some “harmless” misconduct might have involved infractions that were just as serious and in some cases were identical to those in harmful cases.

Santa Clara County had nine cases of harmful misconduct and 33 cases of harmless error, according to the report. San Mateo County had five cases of harmful misconduct and five cases of harmless conduct.

In the 1996 case, Liroff prosecuted defendant Dung Pham, who was convicted of first-degree murder for a fatal shooting outside a cafe. At trial, the defense noted that another man was the initial suspect but a forensic analyst testified that he did not find evidence of gunshot residue on that suspect’s hands.

The defense later learned of lab notes showing the analyst only tested 59 percent of the sample residue taken from the initial suspect’s hands — notes which Liroff’s prosecutorial team failed to disclose to the defense, according to the report.

Subsequent testing of the remaining samples by the defense found there was gunshot residue present on the initial suspect’s hands. A U.S. District Court found the failure to disclose by Liroff was material to Pham’s guilt or innocence and violated his due process. The court granted Pham’s petition for a writ of habeas corpus, according to the report.

Other county prosecutors were also found to have excluded crucial evidence.

DeMertzis used an improper argument and improperly examined a witness in a trial of a man convicted of petty theft for stealing two fans from Home Depot, a Court of Appeal found. The court ruled DeMertzis’ questions about race were irrelevant and could have inflamed the emotions of a jury. The man’s conviction was overturned.

Demertzis said Tuesday that the case was complicated and he didn’t think the judge or defense thought his actions were misconduct.

Troy Benson did not disclose a videotape of a Sexual Assault Response Team (SART) examination in the 2006 case of Augustin Uribe that supported a defense expert’s testimony that no sexual assault had occurred. The conviction was reversed, according to the report.

But Benson’s situation illustrates the complexity of determining who is responsible for misconduct, according to Cydney Batchelor, deputy trial counsel for the California State Bar Association.

Prosecutors are held to a higher standard in criminal cases, where the prosecution as an entity is considered the whole team — including investigators, district attorneys and police. If police withhold or omit evidence, courts will still find prosecutorial misconduct that might not be the fault of the attorney, she said.

Benson said Tuesday his case was far more complicated than as described in the report.

“The defense knew about the video before we did. The court said it was not a failure to turn over exculpatory evidence. The court said the evidence could possibly be exculpatory, and that Mr. Uribe should get a new trial. It’s not that anybody intentionally withheld evidence,” he said.

Batchelor said the bar association is reviewing the 159 cases where misconduct was harmful and resulted in setting aside a conviction or sentence. But she cautioned that flagging a case by the court doesn’t mean the attorney necessarily committed an ethical breach.

The report also used media reports and footnotes in court decisions to identify misconduct. Before disciplining any attorney, the bar association will decide if each situation meets its “burden of proof as clear and convincing” misconduct, she said.

The report found that the courts routinely do not report the misconducts to the bar association, although they are required to do so in the “harmful” cases. Batchelor said it appears many of the cases were not reported but that might have been due to ignorance, she said.

The association’s new chief trial counsel, James Towery of San Jose, had already planned a rigorous training program before the report came out, she said. The association plans ethics training for both defense attorneys and prosecutors, she said.

The report also recommended that the association be more transparent, but as a prosecutorial agency, confidentiality statutes limit what information the association can make public, she said. Greater transparency is only possible if the law changes, she said.

Santa Clara County District Attorney Dolores Carr said Monday that in her experience as a judge and DA such cases are relatively few and that most prosecutorial misconduct is not malicious but a product of insufficient training and experience.

“There are a lot of pitfalls in prosecuting cases. Rules change, sometimes unpredictably,” she said. “The Innocence Project report recognizes that the vast majority of prosecutors utilize fair methods in their work. In fact, less than 4 percent of California’s prosecutors were found to have committed ‘harmful error’ over a period, which extends back in some cases 30 years. …

“While prosecutorial misconduct is always a serious issue, the public should not assume that where there is smoke there is always fire.”