Antonio R. Sarabia II Sept. 24, 2003

Victims Should Be Encouraged, Not Discouraged, to Help Prosecutors

Victims of crime should be encouraged to provide not only information but also other to prosecuting attorneys. A prosecutor with more resources is more likely to build a solid case. To the extent a victim's contribution reduces the outlay by prosecuting authorities on a given case, more resources exist for other cases.

Penal Code Section 1424 States that a prosecutor may be disqualified if "the evidence shows that a conflict of interest exists that would render it unlikely that the defendant would receive a fair trial." In Hambarian v Superior Court, 27 Cal.4th 826 (2002). the state Supreme Court addressed — for the second time — what kind of conduct by a victim causes a conflict of interest sufficient to disqualify a district attorney.

The victim, the city of Orange, paid an accountant $314,000 to assist in the criminal case. The trial court denied the defendant's motion to disqualify the district attorney; the Court of Appeal reversed; but the Supreme Court reversed again and held that the district attorney should not be disqualified because the conflict of interest was not so grave as to render it probable that the defendant would not be treated fairly at trial.

In an earlier case, People v Eubanks, 14 Cal.4th 580 (1997), the Supreme Court found a conflict of interest that mandated disqualification because a victim paid expenses billed to the district attorney,

The victim, Borland Co., worked with the Santa Cruz district attorney in investigating the theft of confidential information. The district attorney hired a computer specialist, who billed the district attorney for $9,450. Borland paid that bill and also $2,232 for the transcription of tapes to aid the district attorney.

How could the Hambarian victim's payment of $314,000 be insufficient to justify disqualification but the Eubanks' victim's payment of $11,772 be enough for disqualification?

The Hambarian court tried very hard to distinguish between the two cases. One distinction was that the Eubanks involved an invoice issued to the district attorney. While this is clear, the other distinctions that the Supreme Court articulated do not withstand scrutiny.

The Hambarian court reasoned that because Orange County was much larger than Santa Cruz county, the relative amount of the payment was similar. The budget of Orange County district attorney was 10 times larger than that of the Santa Cruz district attorney in the 2000-2001 fiscal year.

But the financial contribution of the Harambarian victim was 30 times larger. In relative terms, the benefit to the district attorney in Hambarian, who was not disqualified, was three times greater than the benefit to the district attorney in Eubanks, who was disqualified.

Next, the Supreme Court made a remarkable analysis: "The fact that the City was already pursuing its own civil action against petitioner firther reduced the likelihood that the District Attorney were to decline to prosecute, the City would be able to use Franzen's [the accountant's] work product against petitioner in the civil action."

In other words, because the city might use the accountant's $300,000 of work in another case, the work was of less value to the district attorney. Consider this logic in another context: If I lend you a Ferrari rent-free for two years, you have not gotten anything because I drive the Ferrari after that. According to this reasoning, you will not feel that you owe me anything.

The record does not even support this theory. The accountant had done no work at all on the civil case. Whether he might do so in the future was entirely speculative.

The court next reasoned that the city of Orange, unlike private company Borland, had motive to harm defendant Jeffrey Hambrian because it not a competitor. The court strayed onto the wrong path when it went into the motive of the victim. First, what does the motive or the victim have to do with whether the district attorney was unduly influenced? Perhaps the motive of the district attorney is relevant, but not that of the victim.

Second, don't all victims hope for the defendant's conviction? That is the primary motive of a victim in cooperating with the prosecution and the best practice to end any inquiry into a victim's motive.

Third, if a victim provides important evidence to the attorney, does the motive of the victim matter? The reasoning of the Hambarian court is like saying that if I give a million dollars to a charity for poor children, the attorney should be rejected if I do not like children.

Fourth, the Supreme Court ignored the motivation that the city has to harm Hambarian — it was suing him in a civil case — a motivation likely to be stronger than market competition.

Another distinction that the court tried to delineate between Eubanks and Hambarian is based on the fact that the victim in Hambarian was a city. The court reasoned that the city acted only to protect its residents.

Borland, the victim in Eubanks, was a publicly held company with thousands of stockholders. The city of Orange, the victim in Hambarian, had thousands of residents. Both were run by management groups, which are supposed to act for the good of their constituents. There is no basis for the argument that the management of the city is inherently more beneficient than that of a company. Cities such as Carson, Huntington Park, and South Gate are regularly in court because of ill-motivated decisions.

Another difference that the Supreme Court identified was that, in Hambarian, the district attorney did not know how much the accountant had been paid.

The record reflected that the accountant had a desk in the district attorney's office for two years. Throughout that time, the accountant gave the district attorney a steady flow of reports and analysis. The district attorney had an investigative auditor on staff. To say that the district attorney did had no idea how much the accountant was paid, when it knew how much he worked, where he worked, what he did and what a comparable accountant on the district attorney's staff was paid, does not hold water.

How then are trial courts and attorneys to determine what level of involvement between a victim and a prosecutor rises to a level that justifies disqualification? The only distinction between Eubanks and Hambarian that makes sense is that the address on the bill for services in Eubanks was that of the district attorney — an "envelope test."

Suppose a rape occurs, and the district attorney advises the victim that an expensive DNA test would solve an important evidentiary problem. The district attorney cannot afford it. The victim agrees to pay and tells the lab to send the results to the district attorney but to bill the victim. The lab mistakenly bills the district attorney. The victim pays the bill.

When the defense discovers the bill and the fact that the victim paid for it, it moves to disqualify the prosecutor. Not only was the bill made out to the district attorney, but the victim is "only" a person, not a city. Under Eubanks and Hambarian, the motion to disqualify will be successful.

If this happens, prosecution of the case will be delayed, and the victim will have to recount her ordeal to yet another prosecutor. The victim will be punished for improving the quality of the case by providing additional important evidence, which might exonerate the defendant.

Another result of the unclear principles fashioned by Eubanks and Hambarian is that defendants will make more motions to disqualify. Since no one can be sure what the correct test is, defendants, prosecuting attorneys and trial courts are left to flounder. In such an opaque atmosphere, it behooves defendants to make more motions, which will raise the cost of prosecution and defense in criminal cases.

What the Supreme Court should have done is fashion a test based on who has control of the case, the victim or the prosecutor. The same steps would be used. First, the court would consider whether a conflict exists. If so, the court would determine whether the conflict makes fair treatment of the defendant unlikely.

The court would make this latter determination by looking at control of the prosecution. Facts that would be important are who made the charging decision and the decisions about discovery, tactics and plea negotiations.

Another factor would be whether the individual prosecutor took consideration for personal gain. In such cases the individual prosecutor could be disqualified.

What should be important is whether the victim has provided evidence, investigative resources or legal research. These are simply tools that help the prosecutor do a better job.

In these times of budgetary restraints, judicial decisions that penalize contributions to the government are particularly puzzling. Didn't President John F. Kennedy mean that citizens should help the government when he said, "Ask not what your country can do for you, but what you can do for your country?"

Victims should be the last to be punished for following this principle.