Electronic Testimony Allowed In Canadian Bar Prosecution: Attorney Allegedly Threatened California Prosecutors

A Tribunal Hearing Division of the Law Society of Upper Canada has granted a motion to allow bar witnesses to testify by electronic means.

The Law Society brought a motion for an order permitting it to call the evidence of three witnesses, Mr. Kochis, Mr. Hernandez and Mr. Laing, by electronic means. All three reside in California and are recipients of communications that, in this application, the Law Society alleges are threatening and harassing. Mr. Kochis was the Chief Deputy District Attorney of San Bernardino County in California at the relevant time. Mr. Hernandez was the Deputy Trial Counsel, Office of the Chief Trial Counsel for the State Bar of California. Mr. Laing is an investigator with the San Bernardino County Sheriff’s Office.

The Law Society’s motion is granted. Allowing the California witnesses to testify electronically is efficient, convenient and cost-effective. There will be no negative impact on the fairness of the proceeding.

The order being sought is justified on the basis of convenience and cost and time-effectiveness. The Law Society will incur significant costs if it must organize and pay for flights and accommodations for three witnesses from California. Further, scheduling and attendance will be facilitated if the witnesses need only be available electronically for the duration of their testimony. There is no basis to conclude that their evidence, as we understand it, is unsuitable for presentation by electronic means. They will be identifying and providing context for the communications at issue.

The context

The application against Mr. Sumner arises out of a series of events that took place in California where he was practising law. The events are summarized here but are described in greater detail in Law Society of Upper Canada v. Sumner, 2016 ONLSTH 66 (CanLII), in which a different panel granted the Law Society’s motion for an order suspending Mr. Sumner on an interlocutory basis.

In late 2007, on the strength of his roommate’s private arrest, the Montclair, California police department arrested Mr. Sumner for battery and vandalism. The charges were dismissed in early 2008. In late 2009, Mr. Sumner petitioned for a Declaration of Factual Innocence (the Declaration) from the Superior Court of the State of California. After Mr. Sumner signed a waiver of his civil rights against his former roommate (the Waiver) the District Attorney, Mr. Kochis, indicated the State did not oppose the granting of the Declaration.

At some later point, Mr. Sumner concluded that Mr. Kochis had filed the criminal charges against him without cause and had improperly required him to release his claim against his former roommate as a condition of not opposing the Declaration.

Mr. Sumner alleges that he has suffered significant harm as a result of being coerced into signing the Waiver. He says that Mr. Kochis has committed a number of criminal acts in the context of requiring the Waiver, including that he (Mr. Kochis) solicited a bribe, engaged in extortion, and conspired with others to do both. Mr. Sumner says that, as a result of these actions, he is entitled under California law to make a citizen’s arrest of Mr. Kochis and to require others to assist him in so doing.

 Mr. Sumner threatened to arrest Mr. Kochis and use all necessary force to do so. His threats were by verbal and written communications and were numerous and public. Mr. Sumner made these threats to Mr. Kochis, and to others in positions of authority including Mr. Laing and Mr. Hernandez.

 Email examples

When I go to California next I will arrest. If you [Chief Deputy District Attorney John Kochis] resist, I will kill you [in] accordance with the law!!! You are a criminal and a piece of shit!!!! You should DIE!!!!!

Because you are a supporter of tyranny, you have little to no right to life. I can use violence in the street to rid the world of a tyrant you fucking piece of shit!!

 You are a tyrant and I encourage anybody to blow a hole through your head and rid this world of a gangster and a piece of garbage.

Voicemail

Hi I would like to file a complaint about a criminal enterprise.

 … the San Bernardino District Attorney’s Office engages in a pattern of threatening criminal defendants with prosecutions unless they pay money to a charity or other organization. They have probably done this [to] over 10,000 people they’re probably one of the biggest criminal enterprises of United States of America. I have lots of evidence if you want it …

 OK well then John Kochis, Chief of the San Bernardino District Attourney’s [sic] office is under arrest and if he so much as moves a muscle I’ll blow a fucking hole through his brain ok. That man is fucking guilty right he’s under arrest, bang mother fucker, bang bang bang bang bang mother fucker.

…

he’s fucking dead. That fucking … [unintelligible] … Fucking dead that fucking piece of shit mother fucker is under arrest, you understand me? He’s fucking under arrest and you are too if you think … [Unintelligible] … you have to arrest that mother fucker he’s a fucking gangster … [unintelligible] … he’s under arrest.

(Mike Frisch)