Misconduct of Government Counsel: It All Depends on Whose Ox Is Getting Gored

My morning newspaper has brought the dispatch that various U.S. Senators have their knickers in a twist, deploring the government lawyer misconduct in the trial of Senator Ted Stevens of Alaska, who was convicted based on improper evidence, and whose conviction was later vacated because of that misconduct. Evidently, what six eager-beaver federal prosecutors did was to withhold from Stevens’ defense what the L.A. Times describes as “less-incriminating statements from witnesses and other evidence.” As a result, the federal trial court vacated Stevens’ conviction and dismissed the case. In the investigation of this caper that followed, a special prosecutor found “systematic concealment of evidence but recommended against criminal charges against those responsible.” Richard A. Serrano, Senators Want Stevens Prosecutors Punished, L.A. Times, March 9, 2012, at p. A11.

Doing justice and making sure that trials are conducted in an ethically upright way is great stuff, and a subject close to our heart, so all this high-level foofaraw raises the question in our mind as to why lesser folks (like our former clients, for instance) were not the subject of a similar display of a moral high dudgeon, when they were victimized by government lawyers tampering with evidence in eminent domain trials. Some of our readers may not know this, but it so happens that your faithful servant, at one point in his checkered career, had to deal with several such cases.

Back in the old days, it was common that condemning agencies would strip the reports of their appraisers of parts which they did not wish to disclose in response to discovery orders, and then spring them as a surprise in trial. Don’t take our word for it. The then Los Angeles City Attorney, Roger Arnebergh wrote a law journal article in which he noted that the practice of condemnors exchanging only “bare bones” appraisal reports in response to discovery orders, and saving the complete reports for trial, was common (though in fairness to Arnebergh, his office was not guilty of that practice).

Our first such case was Regents v. Morris, 266 Cal.App.2d 616 (1968), where the court took a dim view ofcondemnor’s counsel and appraiser tampering with the discovery process, and reversed the judgment. And so the precedent had been established, and we thought that Morris put an end to the appraisal report stripping game. Not quite. In Nestle v. Santa Monica, 6 Cal.3d 920 (1972) the Supreme Court faced the same problem, but unlike Morris, it affirmed the misconduct-tainted judgment. Why? Because the ambushed condemnees’ counsel did not try to “unring t he bell” by performing the useless ceremony (after the condemnor’s surprise was sprung) of asking the trial court for a recess, or made a motion to strike, or a motion in limine.

In People v. Sunshine Canyon, 2d Civ. No. 36371 (1972) (unpublished), the same scenario of appraisal report tampering was before the court. The condemnee’s counsel who tried that case happended to be the same one who tried Morris and Nestle, and by now he had learned his lesson the hard way. So he complied meticulously with Nestle’s procedural recipe  for objecting etc. It did no good. The Court of Appeal simply held that the misconduct was not prejudicial.

With this ambiguous track record, condemnors’ lawyers were not ready to give up their underhanded practice of appraisal report stripping. They tried it again and again, but in time California courts rose to the occasion and interdicted it.

There were also eminent domain cases in which condemnor’s counsel engaged in gross impropriety of launching a baseless personal attack on faultless condemnees.  In Garden Grove School Dist. v. Hendler, 63 Cal.2d 141 (1965), condemnor’s counsel launched a vicious personal attack on the condemnee, his lawyers and his appraisers, calling them “pirates,” falsely accusing them of “speculating” in eminent domain lawsuits, and appealing overtly to the jury’s self-interest as taxpayers. The trial court saw nothing wrong with that. The court of appeal did; it called condemnor’s counsel a “buffoon,” but found — what else? — that the misconduct of government counsel was not prejudicial. Though we eventually prevailed in the California Supreme Court (and on retrial) I always found it incomprehensible how a case like that, involving undeniable, gross misconduct of counsel, had to go to the Supreme Court, why it wasn’t dealt with summarily by the lower courts?

Then there was City of Los Angeles v. Decker, 18 Cal.3d 860 (1977), where condemnor’s counsel lied to the jury by arguing that there was no local demand for parking, so the owner’s contention that parking was the property’s highest and best use was meritless, when in fact there was a shortage of parking in the area, and the city’s own environmental impact report took note of that. Again, neither the trial court, nor the court of appeals saw anything wrong with the condemnor’s conduct, and it took the Supreme Court to step in and restore a modicum of ethical behavior on the part of government counsel.

Which brings us to the bottom line of this post. With all these instances of goverment counsel misconduct, was anyone discipolined? Don’t be silly. Of course not. In fact, the government lawyer who “starred” in the Morris case was later appointed to the bench. So if we take note of the still ongoing Senator Stevens brouhaha, and compare it with these war stories, it would appear that misconduct of government counsel is treated as a serious transgression only when its victim is a credentialled member of the establishment.