A Hollywood Ending?

Jesse James Hollywood was a murderous little thug of a drug dealer, 20 years old when he and his coterie did in a young associate of a dealer who owed him money. The story of his crime was ultimately made into a film, "Alpha Dog." Reviews of the film available online provide no incentive to see it, but along the way his trial generated a California Supreme Court opinion on prosecutorial ethics worthy of consideration and comment.

The rules that govern lawyer conduct in California are made by the courts and the Legislature. The State Bar plays a major role through the Committee on Professional Responsibility and Conduct but the rules it writes are subject to adoption by the Supreme Court. Ultimately, the California Supreme Court, both through its approval of rules and its decisions, sets the ethical tone for the state's large and influential bar.

So it is particularly unfortunate when the Supreme Court, faced with a straightforward ethical issue, declines to set the standard of attorney conduct at its highest level.

The court had such an opportunity in Hollywood v. Superior Court, 43 Cal.4th 721 (2008), and muffed it badly, in a case that Gerald Uelmen nominated for "worst opinion of the year" in California Lawyer.

Hollywood was a fugitive from justice in a high-profile murder case in which four of his associates had already been convicted. While the case against Hollywood was inactive because of his having decided Brazil was a safer place for him than Santa Barbara County, Nick Cassavetes, a moviemaker, envisioned a film about the case. Cassavetes approached Ronald Zonen, the prosecuting deputy district attorney in the case, and asked whether Zonen could provide him any material that might be of use in making the film.

Zonen turned virtually the whole case file over to Cassavetes, including reports, tapes, photos, and police and probation reports. Also included were witness contact information and criminal record information. Cassavetes later testified that Zonen "was cooperative" and at no time denied a request.

Zonen received no financial reward for his cooperation, and later justified it by asserting that the publicity would assist in the apprehension of Hollywood. A person associated with the film later testified that Zonen appeared to be "star-struck" and eager to help.

When Hollywood's exile ended with his extradition, Zonen remained the prosecutor. The defendant moved to recuse both Zonen and the entire district attorney's office, asserting that "the prosecutor's unprecedented misconduct in acting as a 'consultant' to film-makers, and providing them with unfettered access to his files and evidence qualifies as conduct warranting disqualification."

Penal Code Section 1424 provides the procedure for motions to disqualify a prosecutor. The legal standard is simply: "The motion may not be granted unless the evidence shows that a conflict of interest exists that would render it unlikely that the defendant would receive fair trial." That sets the burden, but does not help determine whether a conflict exists.

The District Court denied disqualification, finding any conflict of interest "remote and tenuous." The Court of Appeal reversed, finding recusal (of Zonen only) required. In a death penalty case, the appellate court said, the prosecutor "should be held to the highest standard in the legal profession" and free of "personal or emotional involvement," quoting California Supreme Court precedent. "Here, the conduct of Zonen, however well motivated, cannot reasonably be equated with 'the highest degree of integrity and impartiality.'"

Concurring, Justice Arthur Gilbert found that the prosecutor's actions "allowed 'show business' to cast an unseemly shadow over this case."

The California Supreme Court accepted the case for review, thereby depublishing the Court of Appeal opinion, and reversed. The high court required deference to the trial court's finding of no conflict of interest, adopting an abuse of discretion standard. Recusal, it said, is justified only where a conflict is disclosed "so grave as to render it unlikely that the defendant will receive fair treatment."

The rule that might have been (but was not) invoked in the case is California Rules of Professional Conduct 3-310(B)(4), which prohibits representation without client consent when the attorney has a "legal, business, financial or professional interest in the subject matter of the representation."

The court rejected the defendant's contention that Zonen's cooperation with the movie's producers prejudiced the defendant by influencing the portrayal of him in the film. It justified his sharing of documents by accepting Zonen's testimony that the disclosures were made to assist in the apprehension of Hollywood, and to assure that Hollywood would be portrayed as accurately as possible.

Most importantly, the trial court had found that Zonen had not profited financially. The defense contention that his "legacy" would be enhanced and that he might possibly earn future profits was rejected. The court opined that any attorney prosecuting a high-profile case could anticipate such benefits.

The opinion failed to find that a prosecutor sharing the files of a pending case with the producers of an anticipated film should be sufficient to bring the conduct under a high level of scrutiny.

Zonen acted as many civilians would when the opportunity to participate in show business is dangled before them. That opportunity caused him to ignore one of the fundamental obligations of his profession, the maintenance of his files in confidence.

Once aligned with the producers, Zonen was no longer just a prosecutor, but a producer himself, with an interest in the film and its portrayal of him.

The Supreme Court's opinion takes a narrow view of the prosecutor's professional obligation. The opinion correctly states the law as imposing a heavy burden on a defendant seeking prosecutorial recusal, but, as the Court of Appeal pointed out, death penalty cases receive exacting scrutiny.

But it is not the scrutiny but the risk of prejudice that should have been the deciding factor in the case. That risk must be minimized, and not increased by the conduct of counsel. The proper consideration of the court should have been whether a professional or personal interest of the prosecutor could impact the defendant's right to a fair trial. Standards such as "appearance of impropriety" or "Caesar's Wife" are both unnecessary and inappropriate.

What is required is a realistic evaluation of the conduct and its possible influence on a fair trial. This is not a question of criminal law, but of professional responsibility, the law governing the conduct of lawyers. Any relationship or set of facts that may influence a lawyer's dedication to his or her client's interests can be a disqualifying conflict.

The California Supreme Court last year struck a high ethical note in deciding Rico v. Mitsubishi Motors, 42 Cal.4th 807(2007), requiring an elevated level of attorney conduct in the face of inadvertent disclosure. It is regrettable that this case did not establish the same level of professional conduct as a standard for the profession.

The Hollywood case will be among those discussed at a symposium on prosecutorial conduct at the Universisty of La Verne College of Law on October 24.