CA Supreme Court: Film/Book Consulting, Not Conflicts Mandating Recusal

It was prosecutor vindication time at the California Supreme Court in May. In unanimous rulings authored by Justice Kathryn Mickle Werdegar, the state high court held that the Second District Court of Appeal erred when it ordered three deputy district attorneys removed from separate cases each was handling. The ruling chastised the Second District's Ventura branch for failing to grant appropriate deference to a trial court judge's decision that no disqualifying conflict existed for Santa Barbara County prosecutors Joyce Dudley and Ronald Zonen. Justice Werdegar also criticized one of the appellate court's L.A. divisions for punishing Los Angeles County Deputy DA Kenneth Chiu for vigorously trying to block the release of a sexual-abuse victim's medical and psychotherapy records.

All three cases had riveted the Southern California legal world for a couple of years, but the two involving Dudley and Zonen ' both senior deputy DAs ' provided the entertainment value that truly screamed Hollywood. Dudley had been recused for writing 'Intoxicating Agent,' a book that the Second District felt had too many parallels to a rape case she was prosecuting, while Zonen was removed for providing highly sensitive files to producers interested in making a movie about a sensational murder case he had prosecuted. In both instances, the trial court judges had found no reason for disqualifying the prosecutors. The Supreme Court said the trial judges were correct.

'The trial court's role, and the court of appeal's and ours, is to examine the record for evidence of a disqualifying conflict, not to act as literary critic,' Werdegar wrote. 'That a prosecutor may pursue an independent writing career does not alone create a conflict with the public interest and disqualify her from future prosecutions, absent proof her writings create a material conflict in a particular case.'

As for Zonen, the high court noted, the Second District should have deferred to the trial judge's conclusion that the prosecutor cooperated with the makers of the movie 'Alpha Dog' with the real hope it would lead to the whereabouts of Jesse James Hollywood, the alleged ringleader of a gang of men who murdered 15- year-old Nicholas Markowitz. Zonen had already gotten convictions or guilty pleas from four of the participants, but Hollywood was on the lam. Just before the movie premiered, Hollywood was found in Brazil and brought to L.A. to face charges.

While agreeing that Zonen might have gone too far in his zeal to prosecute Hollywood, the California high court said the state law regulating the recusal of prosecutors 'does not exist as a free-form vehicle through which to express judicial condemnation of distasteful, or even improper, prosecutorial actions.' Werdegar did say, however, that Zonen's release of case files without screening them for confidential information was 'highly inappropriate and disturbing.' If there was illegal disclosure, she wrote, 'sanctions are available, as are authorities whose function it is to pursue those sanctions.'

Zonen, best known for trying pop star Michael Jackson for alleged child molestation, was en route to Washington, DC, when this article was prepared and couldn't be reached for comment. But an exhilarated Dudley said she felt vindicated, and reiterated that her book wasn't based on her cases. 'All you have as an attorney is your reputation,' she said, 'and I've enjoyed an excellent reputation. This was a very difficult experience.'

Vindication, however, doesn't mean Dudley or Zonen will be stepping back into their respective cases. Santa Barbara County Chief Assistant DA Patrick McKinley confirmed that both were taken off those cases shortly after the Appellate Court ruled in October 2006. He said the office didn't want to risk losing at the Supreme Court and then having to find replacement DAs at the last moment. He also said prosecutors have been cautioned about outside work. 'We've told them, 'You're either a DA or a writer, or a DA or a movie consultant, but you're not going to be both,' McKinley said.

James Blatt ' the Encino, CA lawyer who represents Jesse James Hollywood ' called the decision to keep Dudley and Zonen off the cases 'a very positive step in the right direction. It was the correct thing to do in the circumstances.'

The Dudley and Zonen cases are Haraguchi v. Superior Court (People), S148207, and Hollywood v. Superior Court (People), S147954.

The California Supreme Court in Hollywood v. Superior Court (People):

'The trial court found Zonen had no present financial interest in Alpha Dog; while he was a consultant, he was not compensated in any way for his assistance. Hollywood contends, however, that by contributing to Alpha Dog, Zonen intended to create the prospect of tangible or intangible future benefits; he elevated the profile of a case he purportedly considers his 'legacy,' put himself in a position to garner additional laurels and plaudits, and, perhaps, expanded the market for a book of his own based on this case. Thus, according to Hollywood, '[f]uture profit may be implied.' ' [But] Zonen is left with the same interest in burnishing his legacy that every attorney has in a high-profile case-indeed, that every attorney on both sides in this case has. Success in high-profile cases brings acclaim; it is endemic to such matters. Moreover, if the high-profile nature of a case presents incentives to handle the matter in any way contrary to the evenhanded dispensation of justice, the problem is not one recusal can solve, as the same issue would arise equally for any theoretical replacement prosecutor.'

It was prosecutor vindication time at the California Supreme Court in May. In unanimous rulings authored by Justice Kathryn Mickle Werdegar, the state high court held that the Second District Court of Appeal erred when it ordered three deputy district attorneys removed from separate cases each was handling. The ruling chastised the Second District's Ventura branch for failing to grant appropriate deference to a trial court judge's decision that no disqualifying conflict existed for Santa Barbara County prosecutors Joyce Dudley and Ronald Zonen. Justice Werdegar also criticized one of the appellate court's L.A. divisions for punishing Los Angeles County Deputy DA Kenneth Chiu for vigorously trying to block the release of a sexual-abuse victim's medical and psychotherapy records.

All three cases had riveted the Southern California legal world for a couple of years, but the two involving Dudley and Zonen ' both senior deputy DAs ' provided the entertainment value that truly screamed Hollywood. Dudley had been recused for writing 'Intoxicating Agent,' a book that the Second District felt had too many parallels to a rape case she was prosecuting, while Zonen was removed for providing highly sensitive files to producers interested in making a movie about a sensational murder case he had prosecuted. In both instances, the trial court judges had found no reason for disqualifying the prosecutors. The Supreme Court said the trial judges were correct.

'The trial court's role, and the court of appeal's and ours, is to examine the record for evidence of a disqualifying conflict, not to act as literary critic,' Werdegar wrote. 'That a prosecutor may pursue an independent writing career does not alone create a conflict with the public interest and disqualify her from future prosecutions, absent proof her writings create a material conflict in a particular case.'

As for Zonen, the high court noted, the Second District should have deferred to the trial judge's conclusion that the prosecutor cooperated with the makers of the movie 'Alpha Dog' with the real hope it would lead to the whereabouts of Jesse James Hollywood, the alleged ringleader of a gang of men who murdered 15- year-old Nicholas Markowitz. Zonen had already gotten convictions or guilty pleas from four of the participants, but Hollywood was on the lam. Just before the movie premiered, Hollywood was found in Brazil and brought to L.A. to face charges.

While agreeing that Zonen might have gone too far in his zeal to prosecute Hollywood, the California high court said the state law regulating the recusal of prosecutors 'does not exist as a free-form vehicle through which to express judicial condemnation of distasteful, or even improper, prosecutorial actions.' Werdegar did say, however, that Zonen's release of case files without screening them for confidential information was 'highly inappropriate and disturbing.' If there was illegal disclosure, she wrote, 'sanctions are available, as are authorities whose function it is to pursue those sanctions.'

Zonen, best known for trying pop star Michael Jackson for alleged child molestation, was en route to Washington, DC, when this article was prepared and couldn't be reached for comment. But an exhilarated Dudley said she felt vindicated, and reiterated that her book wasn't based on her cases. 'All you have as an attorney is your reputation,' she said, 'and I've enjoyed an excellent reputation. This was a very difficult experience.'

Vindication, however, doesn't mean Dudley or Zonen will be stepping back into their respective cases. Santa Barbara County Chief Assistant DA Patrick McKinley confirmed that both were taken off those cases shortly after the Appellate Court ruled in October 2006. He said the office didn't want to risk losing at the Supreme Court and then having to find replacement DAs at the last moment. He also said prosecutors have been cautioned about outside work. 'We've told them, 'You're either a DA or a writer, or a DA or a movie consultant, but you're not going to be both,' McKinley said.

James Blatt ' the Encino, CA lawyer who represents Jesse James Hollywood ' called the decision to keep Dudley and Zonen off the cases 'a very positive step in the right direction. It was the correct thing to do in the circumstances.'

The Dudley and Zonen cases are Haraguchi v. Superior Court (People), S148207, and Hollywood v. Superior Court (People), S147954.

The California Supreme Court in Hollywood v. Superior Court (People):

'The trial court found Zonen had no present financial interest in Alpha Dog; while he was a consultant, he was not compensated in any way for his assistance. Hollywood contends, however, that by contributing to Alpha Dog, Zonen intended to create the prospect of tangible or intangible future benefits; he elevated the profile of a case he purportedly considers his 'legacy,' put himself in a position to garner additional laurels and plaudits, and, perhaps, expanded the market for a book of his own based on this case. Thus, according to Hollywood, '[f]uture profit may be implied.' ' [But] Zonen is left with the same interest in burnishing his legacy that every attorney has in a high-profile case-indeed, that every attorney on both sides in this case has. Success in high-profile cases brings acclaim; it is endemic to such matters. Moreover, if the high-profile nature of a case presents incentives to handle the matter in any way contrary to the evenhanded dispensation of justice, the problem is not one recusal can solve, as the same issue would arise equally for any theoretical replacement prosecutor.'