Younger v. Superior Court

• Decision Date: 23 February 1978
• Citation: 144 Cal.Rptr. 34,77 Cal.App.3d 892
• Court: California Court of Appeals Court of Appeals
• Parties: Evelle J. YOUNGER, Attorney General, Petitioner, v. The SUPERIOR COURT of the State of California, FOR the COUNTY OF LOS ANGELES, Respondent; Edgar Lee WARREN and John K. Van De Kamp, District Attorney of Los Angeles County, Real Parties in Interest. Civ. 52548.

Page 34

144 Cal.Rptr. 34

77 Cal.App.3d 892

Evelle J. YOUNGER, Attorney General, Petitioner, v. The SUPERIOR COURT of the State of California, FOR the COUNTY OF LOS ANGELES, Respondent Edgar Lee WARREN and John K. Van De Kamp, District Attorney of Los Angeles County, Real Parties in Interest.

Civ. 52548.

Court of Appeal, Second District, Division 3, California.

Feb. 23, 1978.

As Modified on Denial of Rehearing March 21, 1978.

Hearing Denied April 20, 1978.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., and Frederick R. Millar, Jr., Deputy Atty. Gen., for petitioner.

No appearance for respondent.

John K. Van De Kamp, Dist. Atty. of Los Angeles County, Harry B. Sondheim, Head, Appellate Div., and Arnold T. Guminski, Deputy Dist. Attys., for real parties in interest.

COBEY, Acting Presiding Justice.

The issue posed by this writ proceeding is whether respondent Superior Court abused its discretion on December 5, 1977 in recusing the District Attorney of Los Angeles County from prosecuting the case of People v. Edgar Lee Warren (LASC 309694) on the motion of both Warren and the District Attorney, the real parties in interest herein. ¹ Respondent court based its recusal order solely upon the facts that Warren is represented by the law firm of Atkins, Evans & Wagner, successor law firm to Cochran, Atkins & Evans, ² and the said Cochran (Johnnie L., Jr.) had been appointed the Assistant District Attorney of Los Angeles County, effective January 3, 1978. The just-mentioned successor law firm is presently defending somewhere between 75 and 200 or more felony cases in respondent court and if this order is upheld the Attorney General, petitioner herein, will, pursuant to Government Code sections 12550 and 12553, be forced to consider either prosecuting a substantial number of these cases himself or employing special counsel to do so at state expense.

This not a case of the personal disqualification of an individual prosecutor because of the existence of a prior attorney-client relationship between him or those in his former law firm and the accused. (See Annot., Disqualification of Prosecuting Attorney on Account of Relationship with Accused (1970) 31 A.L.R.3d 953, 957.) This is instead a case of the disqualification of an entire prosecutorial office from the prosecution of cases where such a relationship formerly obtained because of the fact that the former defense attorney involved has become one of the three top executives in the prosecutorial office.

A. The Role and Responsibilities of the Assistant District Attorney of Los Angeles County

The Assistant District Attorney of Los Angeles County is the number three person in an office having more than 550 deputies. He is outranked therein only by the Chief Deputy District Attorney and by the District Attorney, either of whom he may be called upon to replace temporarily. ³ The primary duties of the office include: (a) policymaking and supervisory jurisdiction over all cases processed by the Office of the District Attorney involving prosecutions in Juvenile Court, and all cases processed by the Consumer and Environmental Protection Division; (b) acting as liaison between the District Attorney and the Board of Supervisors of Los Angeles County; (c) recruitment and employment of attorneys in the District Attorney's Office, and membership on the Appraisal of Promotability Committee and participation thereby in the promotion process with respect to all deputy district attorneys; (d) direct supervision over the Special Investigations Division, which is charged with the investigation and prosecution of misconduct of elected or appointed officials and with misconduct of law enforcement personnel, including but not limited to homicides committed by law enforcement officers; (e) participation in weekly meetings of the executive staff of the office.

B. The Applicable California Law ⁴

In People v. Rhodes (1974) 12 Cal.3d 180, 183, 115 Cal.Rptr. 235, 237, 524 P.2d 363, 365, our Supreme Court took the view that "vital interests of criminal defendants and the criminal justice system are adversely affected when public prosecutors are permitted to defend or assist in the defense of persons accused of crimes." The Court said: "It is essential that the public have absolute confidence in the integrity and impartiality of our system of criminal justice. This requires that public officials not only in fact properly discharge their responsibilities but also that such officials avoid, as must as is possible, the appearance of impropriety." (Fn. omitted.) (Id. at p. 185, 115 Cal.Rptr. at p. 239, 524 P.2d at p. 367.)

In the aforementioned People v. Superior Court (Greer), supra, 19 Cal.3d at page 270, 137 Cal.Rptr. at page 486, 561 P.2d at page 1174, our Supreme Court upheld a recusal order directed against a district attorney prosecuting a homicide, where the victim was the son of a member of the district attorney's staff, because under these circumstances "the prosecutor might at least appear to have an emotional stake in the case of the sort which could disturb his exercise of impartial judgment in pretrial and trial proceedings." The Court pointed out that: "The prosecutor is a public official vested with considerable discretionary power to decide what crimes are to be charged and how they are to be prosecuted." (Id. at p. 266, 137 Cal.Rptr. at p. 483, 561 P.2d at p. 1171.) According to the Court, because of this broad discretion, "the public he serves and those he accuses may justifiably demand that he perform his functions with the highest degree of integrity and impartiality, and with the appearance thereof." (Emphasis added; fn. omitted.) (Id. at pp. 266-267, 137 Cal.Rptr. at p. 484, 561 P.2d at p. 1172.)

C. The Question Presented and Answered

The question presented is whether Cochran's assumption of the office of Assistant District Attorney of Los Angeles County creates such an appearance of possible impropriety, either to the public or to criminal defendants generally, that it was reasonable for the trial court to recuse the district attorney and his entire office from prosecuting any of the felony cases where either Cochran or his former law firm at one time represented the defendant or defendants therein.

We hold that the challenged recusal order before us does not constitute an abuse of discretion by the trial court. The District Attorney is to be commended for the steps he has already taken to insure that Cochran has no contacts with the prosecution of any of his clients or those of his former law firm. The fact remains, though, that in two areas at least the presence of Cochran near the top of the District Attorney's office could possibly affect the prosecution of those cases by the District Attorney.

We refer first to Cochran's attendance at the weekly meetings of the executive staff of the office consisting of some 23 persons who have major responsibilities within the office. Even though Cochran is excluded from any discussion at these or other meetings involving any case against his clients or those of his former law firm, as the District Attorney has promised, he could still quite innocently recommend or otherwise participate in the formulation of prosecutorial policies at such meetings which could ultimately affect, perhaps substantially, ...