Friday, April 20, 2007

"Mr. Schwartz called us" w/update

Apparently, Jeff "" Schwartz isn't happy with all the requests for gag orders that have occurred lately. If the quote below is accurate, he called the Times Standard to alert them to his concerns.

Perhaps he doesn't realize it is the DA's job to talk to the media, not his. Or perhaps he realizes Gallegos isn't up to the job. Perhaps he can't break his 'defense attorney' habits.

I have mixed feelings because I certainly appreciate the more-informative coverage of late. It seems Schwartz, Dollison and Klein all enjoy talking to reporter Kara Machado, filling her in on all the details, and more power to her. She's been doing a great job.

But, though none of these men are trained prosecutors, they should know that talking about their cases potentially prejudices the public, and the jury pool, they should know that doing so may irreparably damage a (possibly) innocent man's reputation, and they should be aware that excessive publicity, particularly in a child abuse case, may make it more difficult for the victim, and the victim's family, may prevent other witnesses from coming forward for fear of being dragged thorugh the mud.

It's going to be tough enough on the victims and their families, made even tougher by the virtual loss of the Victim/Witness program advocates, and the virtual dismantling of the Child Abuse Services Team, and the loss of an experienced child interview specialist.

Given Gallegos' deteriorated relationship with the media follwing his plagiarism debacle and other slips, you can see why he doesn't want to talk to the press. But he needs to do his job. He was quick to say what a DA should do, crowed about his prowess, bragged about doing both the DA's job AND trying cases himself. He was the one issuing "gag orders" when he took office, but his reasons for not wanting his attorneys to talk to the press had more to do with protecting himself and his handlers than anything else. It seem he doesn't care when it is only affecting defendants, and victims.

At this rate, look for him to try hiring a "public relations" person for the office, so he can further abdicate his responsibilty.

"...Schwartz said he is disappointed that gag order requests have been routine lately on the part of the Public Defender’s Office.

“I think the Public Defender’s Office is filing gag order requests without a basis and as a matter of routine, which is offensive to the freedom of speech clause in the First Amendment of the United States Constitution,” Schwartz said. “Other (potential) lawyers (in the Davis case) may be more respectful of it and may decide not to request a gag order.

“I’m disappointed in the media for not taking an aggressive stance on the issue.”

When asked if the The Eureka Reporter is going to address the recent multiple gag orders on various cases, Managing Editor Glenn Franco Simmons said, “We are looking into the matter.”

“I agree with Mr. Schwartz’s criticism regarding the Public Defender’s Office’s requests for gag orders; I also have grave concerns about those orders’ effects on our First Amendment right,” Franco Simmons said. “As for his criticism of local media, I can’t speak for other media, but we are attempting to determine our options at this point and we will know more soon.”

Rich Somerville, managing editor for The Times-Standard, said the issue of gag orders can be serious; if the requests are becoming routine, they can be dangerous; and that The Times-Standard is “not afraid to challenge First Amendment issues in court.”

“Gag orders should only be used in the most extreme circumstances and when they get to be routine, it’s encroaching upon a serious threat to the First Amendment right, which is the public’s right to know the functioning of its government,” Somerville said. “Indeed, it’s true that Mr. Schwartz called us and alerted us to his concerns, but, really it’s only been a relative few days ago, and we’re in the process of seeing how serious this is and pursuing it either as a story or perhaps also sitting down and talking with the judges about this issue.”

Oh, this could get really interesting.


California Bar Association Rules of Professional Conduct

Rule 5-120. Trial Publicity

(A) A member who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication if the member knows or reasonably should know that it will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.

(B) Notwithstanding paragraph (A), a member may state:
(1) the claim, offense or defense involved and, except when prohibited by law, the identity of the persons involved;
(2) the information contained in a public record;
(3) that an investigation of the matter is in progress;
(4) the scheduling or result of any step in litigation;
(5) a request for assistance in obtaining evidence and information necessary thereto;
(6) a warning of danger concerning the behavior of a person involved, when there is reason to believe that there exists the likelihood of substantial harm to an individual or the public interest; and
(7) in a criminal case, in addition to subparagraphs (1) through (6):
(a) the identity, residence, occupation, and family status of the accused;
(b) if the accused has not been apprehended, the information necessary to aid in apprehension of that person;
(c) the fact, time, and place of arrest; and
(d) the identity of investigating and arresting officers or agencies and the length of the investigation.
(C) Notwithstanding paragraph (A), a member may make a statement that a reasonable member would believe is required to protect a client from the substantial undue prejudicial effect of recent publicity not initiated by the member or the member's client. A statement made pursuant to this paragraph shall be limited to such information as is necessary to mitigate the recent adverse publicity.
The American Bar Association Rule 3.6 reads the same.

Then there's the American Bar Association - Rule 3.8 Special Responsibilities of a Prosecutor

The prosecutor in a criminal case shall:
(a) refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause;
(b) make reasonable efforts to assure that the accused has been advised of the right to, and the procedure for obtaining, counsel and has been given reasonable opportunity to obtain counsel;
(c) not seek to obtain from an unrepresented accused a waiver of important pretrial rights, such as the right to a preliminary hearing;
(d) make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal;
(e) not subpoena a lawyer in a grand jury or other criminal proceeding to present evidence about a past or present client unless the prosecutor reasonably believes:
(i) the information sought is not protected from disclosure by any applicable privilege;
(ii) the evidence sought is essential to the successful completion of an ongoing investigation or prosecution; and
(iii) there is no other feasible alternative to obtain the information;
(f) except for statements that are necessary to inform the public of the nature and extent of the prosecutor's action and that serve a legitimate law enforcement purpose, refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused and exercise reasonable care to prevent investigators, law enforcement personnel, employees or other persons assisting or associated with the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under Rule 3.6 or this Rule.
Thanks for the tip, Anon 8:AM


  1. google and read

    california rule of professional conduct 5-120

    American Bar Assoc. model rule of professional responsibilty 3.6

    ABA Model Rule 3.8 (special responsibilities of a prosecutor)

  2. I didn't reserach the first post but I bet it goes something like a prosecutor should keep his mouth shut until the trial is over ?

  3. Yes. Which is why we might consider Blair Angus for DA. That, and she wins a lot of cases. Of course, consider the opposition ....

  4. Blair is much toooo liberal to be a DA. She would let everyone go if they promised to be good.

    The sad truth is the Humbodlt DA's ofice is in such a shamble what qualified decent and ethical person would what to take over that mess?

  5. It wold be lovely if Mr. Gallegos or Mr. Schwartz could find the time put out a press release on the DA decission on the Moore shooting! I guess the DA's oficce is continuing to "evaluate".

    I guess the South Carolina Attorney General's comments on a SC DA could be kind of an eye opener for Mr. Gallegos.

  6. 8:09 post a link please.

  7. It's a reference to the Duke LaCross team case. The DA may get prosecuted for pushing a bogus case.

  8. Maybe you should cut the DAs office a little slack. Mr. Robinson probably knows that they are low in numbers right now and is trying to be a pain in the rear. Does anyone know of any statement made by Klein, Schwartz, or Dollison that actually prejudiced the defendent? Rose, you really know a lot about the internal workings of the DAs office. How is it that you know all these things? What are your professional qualifications with regards to giving legal advice? Are you an attorney? Just wondering.

  9. Nope. Not an attorney. You think something I have said here constitutes legal advice? I'd say it is just common sense.

    And, you could assume that the Public Defenders have good reason for what they are doing, and apparently the Judge agrees. Very little of what goes on makes it into print. Kind of like the tip of the iceberg.

    When the public defender says that her client is hearing of the plea agreement in the paper before she has even had a chance to review it with him, that tells you something. “Such detailed” accounts in the articles — such as information from a police report — creates problems for Angus, she argued. She said the pre-trial publicity could prejudice a potential jury, thereby making it “increasingly difficult” for her to pick from a jury pool someone who has not read the articles.

    Also, Angus argued, “frank discussions” about plea negotiations “suggest to people in the community” that (her client) could possibly be considering pleading guilty.

    Angus added that details of the plea offer — which were not specified in past articles — were read by (her client) prior to her being able to discuss them with him."

    It's something I hear from other sources - that deals get cut without Gallegos notifying the victim and the victim's families. The complaints are made to friends and acquaintances, in rage and frustration. But so far, no one has gone public. Or, if they have talked to the media, it has not been reported that I can think of, except possibly for his bizarre and inexplicable plea offer to Debi August.

    I might add that I have been hearing this for YEARS, not just since he has "lost" half of the staff, and all but three of Humboldt County's experienced prosecutors.

  10. Revealing the pendency of plea negotiations plainly prejudices the defendant's right to a fair trial should the case not resolve. It is possibly the most basic obvious and blatant violation of the rules regarding pretrial publicity that a prosecutor can commit.

    If that was Schwartz, one wonders what he would have done back in his defense days if the prosecutor had done that to his client. On the other hand, isn't one of his clients getting a new trial for ineffective assistance?

    Crank yankers, that's what we have for prosecutors. Yay, they're special.

  11. For Anon 3:44. (Thanks for the tip Anon 8:AM)

    California Bar Association Rules of Professional Conduct

    Rule 5-120. Trial Publicity

    The American Bar Association Rule 3.6 reads the same.

    Then there's the American Bar Association - Rule 3.8 Special Responsibilities of a Prosecutor

    I've posted the text as an update to the original post.

  12. In case you (3:44) meant the North Carolina Attorney General Roy Cooper's comments: N.C. attorney general: Duke players 'innocent'

  13. I'd say the DA's Office's desperation is showing, and they are trying their cases in the media to gain advantage and personal notariety.

    You don't see Fleming or Keat doing that. It's the Gallegos hires. Kara Machado seems to act like a personal spokeswoman for Arnie Kline.

  14. Here's what I'd like anonymous to say:

    Not only does 4/23-2:57 p.m. sound like a complete moron, spouting off so-call facts without logic, this person also sounds like someone intent on making assinine assumptions.

    First of all, it appears that there are quite a few attorneys in the DA's Office who will make media comments that fall under their professional rules/guidelines. The denial of a couple of gag order requests by judges seems to prove that. Not to say that's always true, though, because there are occasions where an attorney may go too far (or hasn't even had the opportunity to go to far) and a judge will determine a gag order should be implemented.

    In regard to not seeing Fleming or Keat "doing that," that is also a stupid statement. I've seen Keat's name in the papers from time to time. Seems he was or is the DA's Office's spokesperson.

    As far as "Kara Machado seems to act like a personal spokeswoman for Arnie Kline," that, again, seems to be an assinine statement. I've seen Klein's name in other publications. And, if we're going to assume here, it seems to me that Kara Machado is more of a spokesperson to Russ Clanton or Michael Robinson or various other attorneys I've seen quoted in the paper she writes for.

    Just because one attorney may cover more cases deemed newsworthy to a media, doesn't mean that media outlet serve for that attorney.

    Seems most people here are clearly idiots.

  15. As I've said, Kara Machado is doing a great job, she's getting the stories, and reporting the details - probably the best court coverage Humboldt County has seen, at least in a long time. And as an information junkie, I appreciate that. It's not necessarily up to her to research the accuracy of what Klein and Schwartz tell her - that maybe ought to be covered by someone else in the newsroom.

    But it is obvious that the Public Defender think the prosecutors are talking too much. Or they wouldn't be asking for gag orders.

  16. Rose,

    It is atypical for a prosecutor to give a first hand account of what happens in court to a reporter. The reporter typically sits in court and writes what they see and hear from all sides.

    Many of the quotes involving Klein (and to some extent Dollison and Schwartz) are not from inside the courtroom.

    Machado wrote what was contained in a probation report in one of her articles prior to the defendant being sentenced.

    It is understandable why the defense attorneys are concerned.

    (I think somebody hit a nerve with 11:58...maybe a little close to home.)

  17. I agree 3:02 - I think 11:58 is Klien blogging on county time or Machado again at her desk instead of being in the courtroom (my money is that it is Klein.)

    And to answer the question posted above:

    "Does anyone know of any statement made by Klein, Schwartz, or Dollison that actually prejudiced the defendent?"

    Yes. Klein's release of the probation report information to Machado was a misdemeanor and a violation of the defendants right to privacy because the probation report is not a public document until after sentencing and can be changed if in error. Then it would be open for only 60 days and it would be another misdemeanor to disclose it afterwards.


    And what about the Yungue case. What was stunning about the attorney generals remarks about the case was that those defendants were actually innocent - he intentionally used this term and NOT that there was not enough evidence to convict them (hope you get the difference.) Not long ago the DA charged and Schwartz took to trial the Yunque case in which the jury acquitted the defendant. (Not unusual these days as the DA can't get convictions on squat since he descimated the real lawyers in the office.) What is significant here is not the acquittal, that happens, but that the Judge granted the defense motion of finding the defendant FACTUALLY INNOCENT after a full trial. This means there was no factual basis to have charged her to begin with and not that there was not enough evidence to get the conviction. It is identical to the Duke Lacrosse matter in the finding by the court and by the ag.

    Wow - this means that she can sue. I wonder what Schwartz is going to say to the state bar. I wonder if he even knows the impact of the courts finding her factually innocent AFTER A FULL TRIAL. See the court could have denied the motion because, after all she was acquitted like other people are. Here the defense had to show that there was no evidence whatsoever to have charged her to begin with -

    Now that is a big deal.

  18. ps the reference to the ag above was to the Duke Lacrosse matter.

  19. To the following:
    4/25/2007 10:17 AM & 4/24/2007 3:02 PM You are obviously complete idiots and make accusations and statements with no proof. Either idiots are ruthless, vile people.
    First of all, I work in the courthouse and see Kara Machado in that courtroom every day. She seems to be running in and out of courtrooms than at her office.
    Second of all, I've seen several attorneys (be it defense or prosecuting attorneys) talk to either Kara Machado or Times-Standard reporter Chris Durant.
    As for Kara Machado being a "personal spokesperson" for Arnie Klein (who seems to talk to everyone, by the way), I would see her more as a personal spokesperson for Mark Bruce. She seems to spend a lot of time talking to defense attorneys than prosecuting attorneys. Then, again, I don't want to make accusations, uneducated statements or spread vile rumors about people. Hell, I have work to do!

  20. Relax, 4:36. I'd say the Eureka Reporter is setting a new bar for reporting on courtroom happenings. She's in there all the ime and not just for the 'sensational' cases. That's a good thing. Kara Machado is doing exactly what she should do, talking to her sources, and reporting on what is going on. The more informed she is, the better job she can do. The more she knows and understands, the more she will catch the nuances and the more her readers will learn and understand. It is a good thing.

    That's not to knock the other papers. When they attend and report on trials, it seems to me they do a decent job. It is a matter of both staffing and priorities.

    In the old days, reporters (including the TV News crews) attended City Council meetings, Board of Supervisors meetings and other meetings, and stayed to catch all of the discussion. These days, many come for the first few minutes and often miss the real story. Again, it has to do with resources and time available. And in these days of TIVO and recorded meetings, it's easy for them to catch up without even attending.

    Out of curiosity - were there any reporters at last Thursday's Planning Commission meeting?

  21. 4/25/2007 4:36 PM:

    Yeah, you should get back to work. You are blogging on county time. Tsk, tsk, tsk.

    Hope you're better in the courtroom than you are on the blogs!

  22. 4:36 --- I mean Arnie Klien - go back to work and quit blogging on county time. Try paying attention to your cases instead of trying to get your damn name in the press and quit the skirt chasing of the DA staff and the bailiffs - oh yeah brother, there have been complaints and you should have you wrinkled ass sued.

  23. I'd say one question is why did Schwartz call the TS with his story? Did he call the other papers?

  24. He called the paper because he is a defense attorney not a dda. He probably thought that by slinging out the terms gag, 1st amendment etc., he would get everyone all riled up. Looks like it didn't work.

    If they want to stop the gag orders, then they should just shut thier mouths and then there would be no problem for the defense attorneys who are just trying to protect their clients rights to have a fair trial.

    but then again, Klien couldn't make it a year in his last office and Schwartz has always relied on his wife for a living...

    so maybe they just are "incapable " of figuring out the problem.

  25. 4/25, 10:27 a.m. - Complete idiot and clueless, insufferable prig.

  26. Above is actually being referred to 10/25, 10:17. Oh, my! In making that typo I MUST be someone who one, doesn't know how to work a computer (i.e. someone with a "wrinkled ass"), two, an incompetent journalist or, let's see, THREE, someone who is tired and shouldn't waste their time blogging like the idiot I'm referring to in the first place. hahaha

  27. You may mean Four - or April4/25 10:17.


Comments are open, but moderated, for the time-being. Good luck.