The Orange County District Attorney’s Office Tuesday vigorously defended a prosecutor found to have committed misconduct by the same judge who booted the office from prosecuting the case against Scott Dekraai, the worst mass killer in the county’s history.
Sandra Lee Nassar faces sanctions by the State Bar of California, which has scheduled a June 28 hearing in Los Angeles.
Orange County Superior Court Judge Thomas Goethals, who dismissed the District Attorney’s Office from prosecuting Dekraai in the penalty phase of his trial after his guilty plea because of findings of outrageous governmental misconduct in the handling of jailhouse informants, found Nassar had committed “willful misconduct” on July 29, 2013.
When asked for comment about Nassar’s case, the District Attorney’s Office released a six-page statement that made multiple, specific legal arguments that the prosecutor did not commit any misconduct. The statement alleges the state bar of pursuing a case against Nassar for political reasons.
“Unfortunately, the OCDA believes that the state bar, which in theory, is tasked with setting rules to be followed by attorneys, is putting politics above principles,” according to the statement. “These allegations against Ms. Nassar that were previously closed have been reopened without any new evidence demonstrating the political nature of this prosecution by the state bar.
The OCDA believes the state bar is on a hunt to put prosecutors’ heads on a stake to support their agenda. No matter what results in the so-called hearing presided by state bar-appointed judge and prosecutor, this is politically motivated and should be overturned by the state Supreme Court upon automatic appeal.”
Laura Ernde, a spokeswoman for the state bar, pointed out in response that the “independent State Bar Court reviews all allegations of attorney misconduct and makes recommendations on culpability and level of discipline. Any disbarment or suspension would have to be approved by the California Supreme Court before going into effect.”
Goethals made his findings in the prosecution of Carmen William Iacullo II, 39, who is serving a 12-year prison sentence handed down to him as part of a plea bargain in January 2014. Iacullo took the plea deal to avoid the risk of a life sentence if convicted at trial, his attorney, Joe Dane, said.
The mother of the abused boy, Lori Pincus, struck her own plea deal in the case in July 2012 and had agreed to testify against Iacullo. Pincus was sentenced to time served and released from custody but was ordered to stay away from her son for 10 years.
Iacullo had been accused of beating, stabbing and putting out cigarettes on his girlfriend’s 5-year-old son.
Dane sought a dismissal of charges against his client due to the misconduct claims but Goethals denied the motion.
However Goethals had harsh words for Nassar, who acknowledged during an evidentiary hearing that she withheld potentially exculpatory evidence for strategic reasons.
The potentially exculpatory evidence at issue was a letter Pincus sent from jail to Iacullo that indicated he was not around when the injuries were inflicted on the boy.
Nassar did not turn over the letter to Iacullo’s attorney, Joe Dane, because she thought he had already seen it, according to her testimony.
Dane also sought two cellphones in Pincus’ name that Iacullo used because he argued it would boot his defense that his client was in custody at the time boy was injured.
Goethals said it was tricky territory legally and that Pincus could not be compelled to turn over the phones, but that might have changed following her plea deal. Nassar griped during her testimony that Dane refused to tell her why he needed the phones.
“And I also didn’t feel that I legally had any way of obtaining those cellphones without a search warrant,” she testified.
“You’ve been told in several discovery requests and in conversations with me as an officer of the court with you that I believe there was exculpatory… information on those phones that belonged to my client,” Dane retorted.
When Dane questioned Nassar about withholding the jailhouse letters from Pincus to Iacullo, the prosecutor said, “It related to trial strategy.”
Nassar also testified that she didn’t turn the letters over to Dane because, “I knew that he was in possession of the letters that had the exculpatory information, so I didn’t at the time feel that it would be a surprise to the defense as to what Lori’s letters contained because the defense already had the letters.”
Goethals ruled there was misconduct because, “I believe (Nassar) inappropriately withheld this evidence for a year and a half.”
Goethals also found misconduct when prosecutors opened a letter to Dane that they had accidentally received.
Goethals said the letter was “clearly identified as legal mail.”
Goethals added that the withholding of a letter from the defense was a “willful” violation and he criticized her explanation.
“It wasn’t even close to a reasonable excuse,” Goethals said. “I don’t know if Miss Nassar doesn’t know what the law is. That’s no excuse. Ignorance of the law for an experienced prosecutor for engaging in … misconduct is not a reasonable excuse either.”
Goethals found that the way Nassar handled the situation with the phones as “negligent.”
“I think she just didn’t know what to do, which is a sad comment,” Goethals said.
Goethals added, “I do find that overall the conduct of the prosecutor assigned to this case (Nassar) falls painfully below the standard of care provided or required of a prosecutor in any case.
If this was a civil malpractice case against Miss Nassar, I would direct a verdict in defendant’s favor because I think she committed malpractice.”
The District Attorney’s Office argued that the 15-year veteran prosecutor did not violate any rules and that the complaint against Nassar has “no merit.”
—City News Service
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