Ethics/Professional Responsibility
Dec. 7, 2012
State Bar review panel denies DA request to introduce evidence that agency is targeting him
The State Bar review panel on Wednesday unanimously ruled in favor of quashing a subpoena from a Del Norte County district attorney who wants to introduce evidence his attorneys say proves the agency is unfairly targeting him.
Daily Journal Staff Writer
SAN FRANCISCO - The State Bar review panel on Wednesday unanimously ruled in favor of quashing a subpoena from a Del Norte County district attorney who wants to introduce evidence his attorneys say proves the agency is unfairly targeting him.
State Bar Court Presiding Judge Joann M. Remke wrote that the bar judge hearing Del Norte County District Attorney Jon M. Alexander's case erred in October when she granted a subpoena of State Bar prosecutors Allen Blumenthal and Cydney T. Batchelor.
Remke said a controversial email from Batchelor to an unknown recipient - published earlier this year in the Sacramento Bee - is not enough to prove that State Bar prosecutors are discriminating against Alexander, as he has suggested. Review judges Judith A. Epstein and Catherine D. Purcell concurred.
According to court documents, Batchelor wrote in the email, "I do not believe for a second that Alexander should be DA [because] I think his mental abilities continue to be adversely affected by his long time meth use, even though he appears to be sober now."
Remke wrote that the State Bar is required to consider prior drug use when considering discipline cases. She added that Alexander could not claim selective prosecution because he is not a member of a protected class, such as an ethnicity or religion.
"We find that consideration of an attorney's competency to practice as a result of his or her history of substance abuse is neither an unjustifiable nor an arbitrary classification in determining whether to prosecute," Remke wrote.
State Bar spokeswoman Laura Ernde declined to comment but said a status conference is set in the case for later this month.
Until now, State Bar Judge Lucy M. Armendariz has held off deciding the case until she knew the review department's answer to the subpoena and the outcome of testimony from a key witness in the case. Michelle Taylor, who allegedly recorded an improper conversation she had with Alexander, refused to testify Thursday when attorneys arrived in Crescent City to depose her.
Attorneys not involved in the case have split opinions on how Wednesday's ruling affects Alexander's case.
The State Bar has avoided testimony that would likely be "embarrassing as hell" if aired in Alexander's trial, said Jonathan I. Arons, who defends attorneys facing discipline charges.
But if the subpoena were granted, Arons said, it would give prosecutors a chance to clarify their motives for pursuing their case. He said the State Bar too often drops the ball on investigating reasons why complaints are lodged against prosecutors, adding it is "curious" that Batchelor has been in charge of a prior discipline case of Alexander's.
"Her prior involvement certainly has some bearing on whether there is some ulterior motive or reason this new case is being pursued," Arons said.
Noah Rosenthal, a San Francisco-based associate for Long & Levit LLP who defends discipline cases, said he sees no hidden motive in Batchelor or Blumenthal.
"I've dealt with both of these prosecutors, and I have no reason to believe they're not doing what they can to protect the public," he said.
Rosenthal added that selective prosecution was "extremely hard" to prove and that he had never seen it successfully argued in State Bar court. But he suggested Alexander could argue he should be protected under the Americans with Disabilities Act as a recovering addict.
"[The prosecutors] may readily admit that one of the reasons is they were concerned with Alexander is his history of drug abuse," Rosenthal said.
Prosecutors - led by Donald R. Steedman - accuse Alexander of improperly loaning $14,000 to a deputy probation officer who made sentencing recommendations on cases Alexander handled as a public defender. They also allege he failed to tell the court of a $6,000 loan he received from a defense attorney on a case that Alexander dismissed. A third set of claims accuse him of having a conversation with a suspect without permission from her attorney. In the matter of: Jon M. Alexander, 11-O-12821 (State Bar Ct., filed May 15, 2012). href="mailto:
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