By Michele Hanisee
Last week’s decision by the California State Bar to file disciplinary charges against former Los Angeles City Attorney Carmen Trutanich based on conduct that occurred 31 years ago, should cause unease to every attorney in the state. This action of the State Bar, which acts as the administrative arm of the California Supreme Court, cannot be squared with that court’s long-held beliefs on timely filing of actions in both criminal and civil cases.
An integral part of the law is the concept of a statute of limitations. In Wood v. Elling Corp (1977) the California Supreme Court reiterated the broad policy behind statutes of limitations: “Statutes of limitation … are designed to promote justice by preventing surprises through the revival of claims that have been allowed to slumber until evidence has been lost, memories have faded, and witnesses have disappeared. The theory is that even if one has a just claim it is unjust not to put the adversary on notice to defend within the period of limitation and the right to be free of stale claims in time comes to prevail over the right to prosecute them.” In a subsequent opinion, Addison v. State of California (1978) the court reiterated the policy reasons for statutes of limitation, writing that they “serve a distinct public purpose, preventing the assertion of demands which, through the unexcused lapse of time, have been rendered difficult or impossible to defend.”
California State Bar Rule 5.21 (A) states that a disciplinary proceeding based solely upon a complainant’s allegation of misconduct must begin within five years of the alleged violation. However, Rule 5.21(G) states the five-year rule does not apply if the source was “independent” and not based on a complaint. In other words, if a damaged party complains, there is a statute of limitations. If the State Bar chooses to act on its own, in the absence of a complaint from an aggrieved party, they can go as far back in time as they please.
In the Trutanich case, the “independent source” is a Federal District Court habeas ruling issued in 2016, thirty years after the trial in which the alleged misconduct occurred. The bar alleges that Mr. Trutanich knew or was “grossly negligent in not knowing” that two witnesses had testified falsely, and that Mr. Trutanich withheld Brady material from the defense. That ruling occurred 16 years after the California Supreme Court denied Barry Williams’ habeas petition which contained similar allegations of prosecutorial misconduct.
The bar complaint vividly illustrates the ills the California Supreme Court warned of in its decisions on statutes of limitation. In the Trutanich case, the two witnesses the court ruled had testified falsely were deceased by the time of the habeas hearing. The handful of witnesses still alive, including Mr. Trutanich, all testified they had little memory of the events in the case which happened long ago. With minimal testimony provided by actual witnesses to the events at issue, the federal court’s decision was based on inferences from fragments of documentary evidence and testimony on patterns and practices of police agencies.
Similarly concerning is the State Bar’s assertion that discipline should be imposed for an alleged violation of Brady v. Maryland, which is a policy designed to protect the due process rights of persons facing a loss of liberty at the hands of the state. For that reason, the Brady decision and its progeny have held that even an inadvertent or unknowing failure by a prosecutor to turn over material evidence violates due process. However, in this instance, the State Bar is not seeking to protect the due process rights of an accused who is being threatened with imprisonment by the state but regulating the conduct of attorneys. This action of the State Bar is essentially asserting the State Bar can seek to revoke a prosecutor’s bar license for failure to turn over evidence that was completely unknown to that prosecutor.
Without delving too far into the merits of the factual allegations, the evidence recited by the District Court is that, “evidence obtained from the prosecution’s file indicated that the prosecution might have been aware of [the witness’s] identity, address and her telephone number.” [Emphasis added.] An attorney from the ACLU told the court in a memo that they did not received a copy of the page with the witness’s address because it was written on the back of one of the pages of the reports (the inference being the back of the pages were not copied). Mr. Trutanich testified at the hearing before the District Court that he was unable to locate the witness to serve her with a subpoena but that a copy of the subpoena listing the witness’ last known address was given to the defense.
It should be troubling to everyone, whether a supporter or Mr. Trutanich or not, that The State Bar of California has elected to bring charges 31 years after the fact, without any claim in the charges of actual knowledge by the attorney of the misdeeds that underlie the alleged misconduct. Even proposed Rule of Professional Conduct 3.8(d), which would govern prosecutorial discovery and Brady requirements, requires some scienter for there to be misconduct.
However, even if true, should a Brady violation be considered an offense exempt from any statute of limitations? The state legislature certainly does not think so; in 2015 the legislature enacted amendments to Penal Code section 141 which make it a felony crime for a prosecutor to intentionally withhold Brady evidence. Yet, the legislature did not deem it necessary to exempt that crime from the usual statute of limitations.
Finally, while the state bar might claim that it instituted proceedings only after the federal court ruling, that excuse is insufficient given that the allegations of the misconduct had been publicly raised decades before. For example, in 2000, the same claims regarding the detective and informant were raised in state habeas proceeding. After extensive discussion, those claims were rejected by the California Supreme Court in a published decision. Even if one disagrees with the Supreme Court’s conclusion and finds the federal court conclusion about the same conduct more credible, the important point is that the allegations of misconduct were in the public arena and available for the state bar to pursue at a time when witnesses were alive and memories fresher. Instead, the state bar chose to sit on its “independent source powers,” only deciding to pursue the claims when a different conclusion on the allegations of misconduct was rendered decades later.
Courts and legislatures have long held that there are very few instances where a statute of limitations should not apply to conduct, be that conduct negligent or willful. The State Bar’s assertion of a lifetime exemption from the statute of limitations for attorney misconduct, simply because the bar initiated the proceedings, is an abuse of its powers. In accordance with its stated policy reasons for statutes of limitation for crimes, the Supreme Court should place limitations on the time frame in which its administrative disciplinary arm can bring charges of attorney misconduct.
Michele Hanisee is President of the Association of Los Angeles Deputy District Attorneys, the collective bargaining agent representing nearly 1,000 Deputy District Attorneys who work for the County of Los Angeles.