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Questions raised about pace of probe into DA's actions
Friday, August 29th, 2014
Issue 35, Volume 18.
City News Service spoke with four veteran attorneys, including a longtime state prosecutor, to get opinions on what constitutes a "reasonable" timetable for making a decision in a case involving a public official.
Indio police detectives turned their findings over to the AG's office on May 20, seeking felony charges of embezzlement and misappropriation of public funds, as well as misdemeanor charges of trespassing, vandalism and petty theft, against District Attorney Paul Zellerbach stemming from campaign-related incidents.
Despite regular inquiries by CNS since that time, the AG's office has been silent about its investigation.
"It's difficult to assign a timeline to this type of matter," said John Gordnier, a retired senior assistant attorney general who left the agency in 2007. "It's in the best interest of all the parties involved, including the public, that the investigation be efficacious in the sense of having a case that's thorough and well-substantiated."
Gordnier told CNS that during his 35-year career, any investigation involving a public official was handed over to the chief assistant attorney general, who delegated responsibility for the ensuing investigation to a staffer in the AG's law enforcement division.
The chosen prosecutor would then work with an investigator to interview all witnesses and pore over whatever evidence is available to "gain direct knowledge" of the case, he said.
"When you reach a conclusion, you prepare a brief for the attorney general and the head of the criminal division, laying out factually what you've found and whether there's reason to move forward," Gordnier said. "And if the
decision is not to go forward, you typically prepare a brief for the public's benefit explaining in as much detail as possible why."
Gordnier would not comment on the Zellerbach matter, but acknowledged that it's not ideal "to have a public official hanging out there without a resolution."
"You want the public to have confidence in the process," he said. Gordnier could only recall one instance during his career when a district attorney was prosecuted -- and he was the one handling it. In 1973, Stanislaus County District Attorney Alexander Wolfe was accused of misuse of public funds, culminating in grand jury proceedings.
"The jury concluded he should be removed from office. He resigned," Gordnier said.
Indio police Chief Richard Twiss told CNS his department has "not been informed of the status" of the AG's review of the Zellerbach case.
Veteran Los Angeles County prosecutor -- now defense attorney -- Steven Levine said he suspects the case proved "very awkward" from the beginning.
"They don't have a lot of trial lawyers in the attorney general's office. They mostly do civil stuff, lawsuits," Levine told CNS. "The DA's race was a little dirty, so they're going to be very careful. They don't want to make this a political kind of prosecution."
He doubted there was a deliberate attempt to gear down the pace of the investigation because of Zellerbach's position.
"I disagree with people who say it doesn't pass the smell test," Levine said. "Before they go forward, they're going to make sure everything lines up. This could take a few months -- or a year."
Former federal prosecutor Carol Chase, a law professor at Pepperdine University, said it's difficult to know what factors have come to bear in the AG's review.
"It may be that the case is considered to be relatively minor," Chase told CNS. "It may be that they have uncovered some problems in proving it. These things take time to sift through."
Chapman University law school professor Ron Rotunda said it's "perfectly proper" for the AG's office to disclose what stage of the investigation it has reached, without declaring when it expects to make a decision.
"There's nothing wrong with saying, 'Here's where we are now, and we'll tell you when we're done,"' Rotunda told CNS. "I can understand the government wanting to do the job correctly. But that doesn't mean dragging it out."
Rotunda, who served as assistant counsel for the Senate Watergate Committee in 1973, said concerns about a "slow walk" by the AG's office are legitimate.
"It's the job of the press to make sure that doesn't happen," he said. "This case should be handled objectively, but with reasonable dispatch. If they don't proceed because there's no evidence, that's fine. But if they don't proceed because they're protecting a friend, that's very bad. If they're not going to pursue it, they should tell us."
On April 23, Zellerbach was seen knocking down a large campaign sign belonging to his opponent, Mike Hestrin, at the intersection of Indio Boulevard and Jefferson Street. He also uprooted three smaller Hestrin signs outside a
convenience store a couple of blocks away.
He said the first incident was an accident, and that he took down the other signs because the property owner had given him permission.
Zellerbach was on county time, using a county-owned vehicle, with a county employee at his side at the time.
Hestrin won the June 3 election and is slated to take office in January.
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