SUPERIOR COURT OF CALIFORNIA. COUNTY OF RIVERSIDE (Southwest) ) ) ) ) ) ) ) ) ) ) ) ) ) Plaintiff,

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1 MELODY A KRAMER, SBN KRAMER LAW OFFICE, INC Scranton Road, Suite 0 San Diego, California Telephone ( - mak@kramerlawipcom Attorney for Defendant David Alan Dortch THE PEOPLE OF THE STATE OF CALIFORNIA, v DAVID ALAN DORTCH DOB 0// SUPERIOR COURT OF CALIFORNIA Plaintiff, Defendant TO THE COURT: COUNTY OF RIVERSIDE (Southwest Case #SWF001 MOTION TO DISQUALIFY THE RIVERSIDE COUNTY DISTRICT ATTORNEY S OFFICE AS PROSECUTOR FOR THE PEOPLE OF THE STATE OF CALIFORNIA Date: September, 1 Time: :0am Dept: S Defendant David Alan Dortch in the above-captioned action moves this Court pursuant to Penal Code 1 to exclude the Riverside County District Attorney s Office as prosecutor on behalf of the State of California for the following reasons 1 The Riverside County District Attorney s Office has an actual conflict of interest that would make it unlikely that the Defendant would receive fair evaluation of whether and how this case is to be prosecuted and unlikely that

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3 MEMORANDUM OF POINTS & AUTHORITIES INTRODUCTION The Riverside County District Attorney s Office should be disqualified as the prosecutor in this criminal matter because the evidence shows that a conflict of interest exists that would both affect their ability to impartially perform their discretionary functions and would interfere with the Defendant getting a fair trial This case was filed by Riverside County District Attorney s Office while District Attorney Paul Zellerbach, arresting officer Brendan Carney, and Carney s employer, City of Murrieta, were all named defendants in a civil lawsuit filed by Defendant Dr David Dortch and his family challenging the constitutionality of conduct towards them, including the search and statements used as a basis for the filing of the Criminal Complaint in this case Furthermore, current handling Assistant District Attorney Paul Svitenko has repeatedly tried to convince Defendant, through two of his attorneys, to drop the civil lawsuit as part of conversations about plea negotiations in this criminal case FACTUAL SUMMARY The charges pending against Defendant Dr Dortch arise out of items seized and statements made on April, 1 Dr Dortch has always contended that the items seized were fruits of the poisonous tree of an illegal search, and that the statements made were while he was in custody, but not having been given his Miranda warnings Declaration of Melody A Kramer, Months before this case was filed, and months before the arresting officer, Brendan Carney even wrote his Incident Report regarding Dr Dortch and the events of April, 1, Dr Dortch and his family challenged the legality of the search and other actions of officers of the Murrieta Police Department and the Riverside County District Attorney s Office Current Riverside County District Attorney Paul CASE NO SWF001

4 Zellerbach was one of the named Defendants, as was arresting officer Brendan Carney, and the City of Murrieta Request for Judicial Notice, Exh A All of the Riverside County Superior Court judges were disqualified to hear the civil lawsuit See Request for Judicial Notice, Exh B On October, 1, Brendan Carney, while the civil lawsuit was pending against him, prepared an Incident Report regarding events of six months earlier relating to Defendant David Dortch Declaration of Melody A Kramer,, Exh A On November 1, 1, while the civil lawsuit was pending, arresting officer, Brendan Carney made a warrantless arrest of Defendant Dr Dortch outside of the city limits of the City of Murrieta (outside of his jurisdiction Declaration of David A Dortch, The Criminal Complaint in this case was filed on January, 1, based both on Carney s information and arrest No preliminary hearing has yet been held See Request for Judicial Notice, Exh C At the last hearing in this matter on July, 1, when the preliminary hearing had been set to be heard, Assistant Deputy Attorney Paul Svitenko extended a plea offer to Dr Dortch, via his counsel, Mr Levinsohn The precise details of that plea are still unclear, however, Mr Levinsohn conveyed to Defendant Dr Dortch that Assistant Deputy Attorney Paul Svitenko had added that Dr Dortch should dismiss the civil lawsuit Dr Dortch understood that to be a veiled threat, that his action (or inaction with regards to the civil lawsuit was connected to the plea offer Dortch Decl, Defendant s counsel, Ms Kramer, subsequently contacted Mr Svitenko seeking clarification of the precise details of the plea offer extended to Dr Dortch so its implications could be evaluated and considered In response, Mr Svitenko left a lengthy voic message for Ms Kramer that also intertwined a recommendation that the civil lawsuit be dropped CASE NO SWF001

5 I have proposed a misdemeanor resolution that I think will allow him to keep his license I think its going to be an answer but he had to check it so we put it out one more time for him to check with the licensing board and so forth But what I have is a misdemeanor proposal on the table I don t pretend to know how you advise Mr Dortch but in terms of, I think the civil suit with Murrieta and so forth I would say he should stop throwing good money after bad Murrieta is a nice town You know his kid did what he did, and so forth I leave it up to you to advise him He seems like a guy who s kind of got his stuff together in a lot of ways and may not want to keep on making trouble for himself Kramer Decl, Mr Svitenko did not specify what the misdemeanor charge was, nor did he make any reference to the deferred entry judgment procedure that Dr Dortch understood was part of the offer Kramer Decl ; see also Dortch Decl On July 1, 1, Ms Kramer ed and mailed a letter to Riverside County DA Paul Zellerbach requesting dismissal of this case or appointment of a special prosecutor, but no response has been received of any kind Kramer Decl, Exh B ARGUMENT I A DISTRICT ATTORNEY MAY BE DISQUALIFIED FROM A CRIMINAL CASE WHERE A CONFLICT OF INTEREST EXISTS Penal Code 1(a(1 provides that a motion to disqualify a district attorney may be granted if evidence shows that a conflict of interest exists that would render it unlikely that the defendant would receive a fair trial" "Conflict" within the meaning of Penal Code 1 is "evidence of a reasonable possibility the district attorney's office may not be able to exercise its discretionary function in an evenhanded manner" People v Merritt, CalApp th 1, CalRptr d ( [W]e conclude that a trial judge may exercise his power to disqualify a CASE NO SWF001

6 district attorney from participating in the prosecution of a criminal charge when the judge determines that the attorney suffers from a conflict of interest which might prejudice him against the accused and thereby affect, or appear to affect, his ability to impartially perform the discretionary function of his office People v Superior Court (Greer ( Cald,, 1 Cal Rptr, 1 Pd 1 (emphasis added (1 In our view a "conflict," within the meaning of section 1, exists whenever the circumstances of a case evidence a reasonable possibility that the DA's office may not exercise its discretionary function in an evenhanded manner Thus, there is no need to determine whether a conflict is "actual," or only gives an "appearance" of conflict ( The DA's office is obligated not only to prosecute with vigor, but also to seek justice This theme was stressed almost half a century ago by the United States Supreme Court in Berger v United States ( US,, [ LEd, 1, SCt ], "[The prosecutor] is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done" People v Conner, Cald, CalRptr 1, Pd ( (emphasis added The Riverside County District Attorney s Office cannot impartially perform the discretionary function of his office in this case because of the pending civil dispute that was filed months before this case The underlying police Incident Report was written by Murrieta Police Department Detective Brendan Carney six months after the alleged offense date and while he was a named defendant in a civil lawsuit filed by Defendant Dr Dortch One week later, Carney arrested Defendant without a warrant and outside of his jurisdiction, in unincorporated Murrieta, still while a named defendant This report and arrest occurred after the Murrieta Police Department officially CASE NO SWF001

7 targeted Defendants family as being a safety concern and supposedly holding certain political beliefs and while the Murrieta Police Department was a named defendant in the civil lawsuit filed by Defendant Dr Dortch After being booked, Defendant Dr Dortch was under the threat of criminal prosecution from the very entities and people he had sued in civil court, having to appear in court several times before any charges were filed The pending criminal charges were filed by the Riverside County District Attorney s Office while Mr Zellerbach was still a named defendant in the civil lawsuit Now, the latest handling Deputy District Attorney Svitenko has repeatedly advised Defendant Dr Dortch, through his counsel, that the civil case should be dismissed It is without dispute that the Riverside District Attorney s Office is not acting in an impartial fashion with respect to this criminal prosecution Instead, they have a vested interest in trying to protect their own, the Murrieta Police Department, from possible civil liability Indeed, it appears that they are pushing for some type of plea by Defendant in order to immunize the Murrieta Police Department from a potential malicious prosecution action The Riverside County District Attorney s Office cannot be impartial in this case, and have already indicated by word and deed that they are not being impartial Therefore, they must be recused II RULES OF PROFESSIONAL CONDUCT PROHIBIT THE THREATENING OF CRIMINAL CHARGES TO OBTAIN ADVANTAGE IN A CIVIL DISPUTE A member [of the State Bar of California] shall not threaten to present criminal, administrative, or disciplinary charges to obtain an advantage in a civil dispute Rules of Professional Conduct, Rule -0(A This case was threatened and then filed by the Riverside County District CASE NO SWF001

8 Attorney s Office while named defendants in a civil lawsuit on the same subject matter brought by the Defendant Dr Dortch and his family A special prosecutor should have been voluntarily appointed there and then, but that did not happen The Riverside County District Attorney s Office used its power of authority to take and support actions against Defendant that by any reasonable analysis would be considered retaliatory for the civil lawsuit Now, the Riverside County District Attorney s office continues to pressure Defendant to dismiss the lawsuit in the context of settlement negotiations This violates the spirit, if not letter, of Rule - 0(A III THE ENTIRE DISTRICT ATTORNEY S OFFICE SHOULD BE DISQUALIFIED Recusing an entire prosecutorial office is a serious step, and disqualification of an entire staff is disfavored absent substantial reason related to the administration of justice See People v Hamilton ( Cad,, CalRptr 01; People v Hernandez (1 CalAppd, CalRptr As outlined above, the reasons for recusal include direct involvement of at least the following personnel from the Riverside District Attorney s Office - District Attorney Paul Zellerbach, Jennifer Garcia, Sean Crandall (all named defendants in the civil lawsuit, and Paul Svitenko (latest handling attorney Furthermore, Mr Svitenko s repeated advocacy on behalf of the Murrieta Police Department for dismissal of the civil lawsuit intermixed with resolution of the criminal case makes it clear that the lack of impartiality far exceeds the bounds of any personal, compartmentalized, animus This is a District Attorney s Office taking sides in a civil dispute and holding hostage the keys to resolution of this criminal matter at the same time CASE NO SWF001

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