Suspended DA's attempt to overturn disbarment recommendation is denied
Del Norte County's suspended District Attorney Jon Alexander had the appeal of his disbarment recommendation rejected on Wednesday by the Review Department of the State Bar Court of California and was ordered to pay the Bar's costs.
The opinion on Alexander's appeal comes more than a year after the suspended DA was recommended for disbarment by a State Bar Court hearing judge in April 2013, which was a first in California for a sitting DA.
The Review Department's opinion said that "disbarment is both necessary and appropriate ... to protect the public, the courts, and the legal profession." Since Alexander "committed the present misconduct just months after being placed on disciplinary probation," the department concluded that further probation and suspension would not prevent further misconduct on Alexander's part.
Started with traffic stop
Alexander, who campaigned on a "Death to Meth" platform in 2010, was ultimately most harmed in his case with the State Bar for his handling of a meth-related case in 2011 that came across his desk just three months after taking the office of DA.
In March 2011, Michelle Taylor was riding in a truck driven by Damion Van Parks when the two were pulled over by police and packets of meth were found in Taylor's pants.
"She told the officer the drugs belonged to Van Parks and that he asked her to hide them," the opinion states. Both Taylor and Van Parks were charged with felony drug violations.
In July 2011, Taylor paid an unscheduled visit to Alexander's office, barging in and immediately launching into a confession that the meth belonged to her and not VanParks, according to the opinion. During the conversation, Taylor said that she was represented by local attorney Darren McElfresh.
The fact that Alexander did not stop the conversation after being told that Taylor was represented by an attorney is one of the primary reasons that the State Bar has recommended disbarment. It's illegal for a prosecutor to speak to a defendant that he knows to be represented by another attorney - regardless of the conversation topic.
"A district attorney may not communicate with a criminal defendant he knows to be represented by counsel, even if that communication is limited to an inquiry into conduct for which the defendant has not been charged," the opinion states, citing case law.
Alexander did not inform McElfresh about the meeting with Taylor and denied the meeting when he was asked about it by deputy D.A. Katherine Micks just three days later, according to the opinion.
Alexander also did not inform Van Parks' attorney about Taylor's confession, which would have exonerated Van Parks, during his preliminary hearing, which the Review Department said Alexander had a legal duty to do.
In August 2011, Van Parks gave his attorney Leroy Davies an audio recording of the conversation between Alexander and Taylor, which was provided to Micks. According to Micks, after Alexander listened to the recording with her, he "told me that it was clearly him on the tape, that it was clearly a conversation with Michelle Taylor, and that he had recollection of having that conversation with her."
In an October 2012 interview with the Triplicate, Taylor said she was unaware of the recorder on her person. She speculated that Van Parks slipped an activated audio recorder into a jacket he loaned to her before she went to speak to Alexander. Van Parks had asked Taylor to say that the drugs were hers because without prior offenses she was likely to get off easier, Taylor said.
The day after Alexander heard the recording, he delivered a copy of the tape to McElfresh with a note stating, "Honestly doNOTrecall Michelle Taylor in my office, but must have cause she taped me telling that Van Parks was innocent and the meth washers" (emphasis in the original note).
Alexander's appeal argued that the tape of the conversation was inadmissible, since it is against the law to use evidence obtained from recording a confidential conversation.
The Review Department said that Alexander waived his right to the protection from this law when he gave the recording (with a note) to McElfresh and when he provided a transcript of the tape to his expert witness for the State Bar disciplinary proceeding.
Essentially the Review Department concluded that Alexander could not use the tape as evidence for his own defense and then turn around and call it inadmissible.
Another portion of Alexander's appeal claimed that he was "deliberately and intentionally targeted" for being a rehabilitated drug addict, relying heavily on a statement from a State Bar attorney that she "did not believe for a second that Alexander should be D.A. I think his mental abilities continue to be adversely affected by his long-time Meth use, even though he appears to be sober now."
The Review Department said that "Alexander failed to establish he is the subject of selective prosecution."
The review department agreed with the hearing judge that Alexander violated the law preventing communication with a represented party by speaking to Taylor without her attorney present "about her pending criminal matter without consent of her defense attorney when he knew she was represented by McElfresh," according to the opinion, citing the hearing judge.
The opinion also agrees with the hearing judge on Alexander's acts of moral turpitude, which include: speaking to Taylor when he knew she was represented by counsel; not immediately telling McElfresh about the conversation with Taylor until he learned of the recording; failing to tell Van Parks' attorney of Taylor's statements that exculpated Van Parks; falsely declaring under penalty of perjury that he immediately told McElfresh about the meeting with Taylor; failing to disclose Taylor's statement favorable to Van Parks during Van Parks' preliminary hearing; and denying his conversation with Taylor to Micks.
During the State Bar disciplinary hearing, Alexander presented over 30 character witnesses testifying on his behalf and had 180 people sign statements attesting to Alexander's integrity and good character. The declarants included the Humboldt County district attorney, the Pelican Bay State Prison warden, and the superintendent of Del Norte County Unified School District.
The witnesses in the flesh included a Court of Appeal justice; two trial judges; Crescent City officials, including the city attorney, mayor and police chief; and many others, most of whom echoed statements of Alexander as a good role model and generous to a fault. Witnesses said that Alexander made positive changes to the community and it would be a terrible loss if Alexander could not practice law.
Alexander's community service, including creation of the first 12-step program in Del Norte for juveniles, were heavy mitigating factors for the review department, but it was ultimately not enough.
"Alexander's good character and community service, although compelling, do not clearly predominate over his serious misconduct and multiple aggravating factors, including his extensive prior record of discipline," the opinion states.
Alexander has stated his misconduct was a "momentary error of judgement" and that his actions did not harm Taylor or Van Parks.
"Other than the criminals that I vigorously prosecute, no party or individual ever suffered from any action of mine," Alexander told the Triplicate on Friday.
The opinion states that "Alexander contends his political enemies are responsible for repeatedly filing spurious complaints about him with the state bar."
"His indifference to his own wrongdoing is a compelling factor in aggravation," the opinion states.
The review department cited other examples of misconduct by prosecutors that were more egregious and extensive than Alexander's alleged misconduct, but those attorneys "had no prior disciplinary records and were remorseful for their misconduct. Such is not the case here," the opinion said. "To the contrary, Alexander's three prior records of discipline and his denial of wrongdoing weigh heavily in favor of disbarment."
Supreme court ahead
Alexander's disbarment does not go into effect until approved by the California State Supreme Court, and he has some legal options to challenge the opinion, including asking the Review Department for reconsideration and asking for discretionary review from the California Supreme Court.
Alexander's attorney for the State Bar case, Kurt Melchior, who has been inducted into the California Trial Lawyers Hall of Fame, said that they have not reviewed the decision sufficiently to comment in detail.
"But we disagree with this decision and we will take this matter to the Supreme Court," Melchior said in an email to the Triplicate. "We hope and trust that the Supreme Court will see this situation as we see it, at worst an unprecedented and involuntary 4 minute encounter and not a moral professional blemish; and that this decision will be reversed."
Reach Adam Spencer at firstname.lastname@example.org .