Suspension, Probation Recommended For Withholding Exculpatory Evidence

The California State Bar Court Review Department recommends suspension of six months and probation for a prosecutor’s discovery violation.

Sandra Lee Nassar, a deputy district attorney in the Orange County District Attorney’s Office, appeals a hearing judge’s decision finding her culpable of three counts of misconduct for her failure to produce evidence in a felony criminal trial. While the Office of Chief Trial Counsel of the State Bar (OCTC) recommended that Nassar be actually suspended for six months, the judge recommended that Nassar be suspended for two years, that execution of that suspension be stayed, and that she be placed on probation for three years subject to an actual suspension of one year and until she provides proof to the State Bar Court of her rehabilitation, fitness to practice, and present learning and ability in the general law. Nassar asserts that discipline is not warranted as she acted appropriately. OCTC does not appeal and supports the judge’s decision and discipline recommendation.

Upon independent review of the record (Cal. Rules of Court, rule 9.12), we reject Nassar’s arguments, and affirm the hearing judge’s culpability findings, but not her discipline recommendation. In light of the comparable case law, we recommend an actual suspension of six months to protect the public, the courts, and the legal profession.

The criminal case involved two defendants charged with abuse and torture of a five-year-old. Nassar had a “mail cover” of the two defendant in place that (unbeknownst to them) reviewed all their non-privileged correspondence.

One of the defendants pleaded guilty and was released.

Between July 2011 and August 2012, Iacullo’s attorney, Joe Dane, repeatedly requested discovery documents from Nassar. Iacullo’s case was scheduled for jury trial five times during April 2012 to June 2013. Each time, the defense filed a motion to continue the trial shortly before the scheduled date. The superior court granted each motion on the first day of trial, except the first one, which was granted the week before trial was to start.

Wonder if Joe Dane has ever represented a Jane Doe?

 After Nassar was reassigned, the case was transferred to ADA Duke

When Nassar told Duke about the mail cover in the Iacullo case, Duke asked if any of the more than 1,000 pages of collected material had been produced. Nassar had not produced any of it, and replied, “Why would I?” Duke then spoke to her supervisor, Ted Burnett, who confirmed that the mail cover materials should have been provided to Dane in response to his earlier requests. On June 6, 2013, Duke produced all collected materials to Dane and canceled the mail cover.

A motion to dismiss ensued

The superior court found no due process violation and denied the motion to dismiss. However, the court determined that Nassar committed a “willful Brady violation,”  and recused her from the case. The court found that Nassar did not produce “obviously exculpatory material,” and her justification was not reasonable, adding that “It wasn’t even close to a reasonable excuse.” The judge noted that Dane could use the letter from Pincus to Iacullo to impeach Pincus’s testimony at trial and that the defense could call Nassar as a witness. Neither side appealed the court’s ruling.

Iacullo pleaded guilty and got 12 years.

The court here

Nassar was obligated under the Penal Code to disclose items contained within the mail cover 30 days before the first scheduled trial date of June 20, 2012. By withholding that evidence, she violated rule 5-220.

Sanction

We find that Nassar lost sight of her prosecutorial duties when she failed to disclose the mail cover materials. She shifted her focus away from her duty to shield against injustice and concentrated on the adversarial nature of the job. She repeatedly failed to make the disclosures, despite Dane’s repeated requests, before each of the scheduled trial dates, in violation of the Penal Code. Nassar admitted that she withheld discoverable evidence to obtain a strategic advantage at trial. Further, she did not avail herself of the remedy permitted under Penal Code section 1054.7. Instead of requesting the judge to look at the materials in camera to determine if good cause existed to defer producing the materials, Nassar improperly made that determination herself. Her misconduct was serious and her actions fell substantially below the standards required of a prosecutor. 

… we recommend that Sandra Lee Nassar be suspended from the practice of law for two years, that execution of that suspension be stayed, and that she be placed on probation for two years with the following conditions:

Nassar must be suspended from the practice of law for the first six months of her probation…

OC Weekly reported on the hearing judge’s decision. (Mike Frisch)