Former Solano County DA working in SF despite shadow of alleged misconduct

For the past year or so, a gray-haired lawyer in his mid-50s named Don du Bain has been a common face around the Hall of Justice. He might be relatively new to San Francisco, but he is no novice attorney.

In fact, he’s very experienced. He worked as a Solano County prosecutor for two decades, serving as the elected district attorney for more than 10 years of that time.

Last year, after a scandal involving a murder trial and narrow re-election defeat in 2013, du Bain was a man without a job. But that didn’t last long, as he was given a job in San
Francisco.

Now, while he tries cases as a regular prosecutor, du Bain’s checkered past might be catching up with him. The Solano County scandal, in which du Bain’s office allegedly failed to properly disclose evidence during a trial, raises questions about his ethics.

“The issue of prosecutors who violate their duty to provide evidence of innocence is extremely troubling,” said Public Defender Jeff Adachi. “It’s a scourge on our criminal justice system. We’ve asked the courts to adopt a policy of requiring prosecutors to state on the record whether they have complied with Brady. We haven’t heard back.”

When the San Francisco District Attorney’s Office hired du Bain, it knew about his record. The office also hired one of the attorneys at the center of the scandal that du Bain can’t seem to leave behind.

That lawyer, Andrew Ganz, along with du Bain, was chastised by a judge in Solano County for alleged misconduct surrounding a murder trial, according to court documents. Yet those past misdeeds did not impact their hiring.

The trouble is, there is not a uniform disciplinary system for lawyers, and that leaves du Bain’s case up in the air.

Ganz has been with the San Francisco office since March, and du Bain — who resigned from office in Solano County early in 2014 after his re-election bid failed — joined in late 2014.

“It was an opportunity I didn’t want to pass up, because opportunities to work as a prosecutor with my years of experience are few and far between,” du Bain said in August 2014 to the Vacaville Reporter, which also reported that San Francisco District Attorney George Gascon contributed to du Bain’s re-election
campaign.

While both former Solano County prosecutors have clear disciplinary records with the state bar, the Solano County judge severely chastised them for their actions in a controversial murder trial that was linked to a coroner scandal that in part cost du Bain his job.

Nonetheless, Gascon’s office stands behind the hires.

“We have reviewed the material involved, spoken to both attorneys, and are satisfied by what we have learned,” said Alex Bastian, a spokesman for Gascon’s office. “We were aware of the situation and the ruling of the court. We hold all of our employees to high standards, and we do that through extensive supervision and training.”

The case in question was the murder trial of Michael Daniels, 61. Daniels was charged with the killing of 37-year-old Jessica Brastow in a Vallejo motel room in August 2012. Ganz was the chief prosecutor on the case, which ended in an acquittal.

The issues that eventually put the pair in hot water began before the trial. Solano County Superior Court Judge Daniel Healy held an evidentiary hearing on the matter of disclosure and issued a blistering opinion aimed squarely at Ganz and his boss.

The judge found that Ganz unsuccessfully tried to change the testimony of then-Coroner Susan Hogan in Daniels’ murder case regarding whether Brastow’s death was a homicide. The coroner said it was unclear if the death was a homicide, while Ganz was determined it was.

Du Bain’s office also failed to disclose exculpatory evidence in the case regarding the autopsy notes and audio, along with his meeting with the coroner. Exculpatory evidence can exonerate or help exonerate a defendant.

The judge said Ganz’s belief that he didn’t need to inform the defense of this information “suggests a prosecutorial attitude either incapable of or disinterested in maintaining the minimum ethical standards that all prosecutors are sworn to uphold.”

The judge’s opinion also fell harshly on du Bain and the Solano County sheriff. “Their abject failure to adequately handle and discipline these materials is troubling, and their public effort to blame each other for what was a joint obligation is nothing short of disgraceful,” wrote Healy.

Before the trial, Sheriff Tom Ferrara told du Bain he was launching an investigation into the coroner’s competency. It eventually revealed many failures.

That investigation and its findings were not passed along to defense attorneys until months later, a fact Healy pointed out in his blistering opinion.

Healy also wrote that while du Bain had a written policy on making sure discovery was never in question, that policy had “no value when the prosecution’s deeds do not match its words.”

Du Bain, who said he could only comment to the San Francisco Examiner in a circumspect way about the matter since there are still open cases related to it, insisted he did nothing wrong. He refrained from commenting directly on Healy’s decision.

Leslie Caldwell, Solano County’s public defender, would not comment on du Bain beyond pointing to an appeals court opinion stating the prosecutor’s responsibility to turn over all exculpatory evidence. All such material has to be turned over before trial. In the Daniels case, her office had to push for that from du Bain’s office.

Although neither du Bain nor Ganz has a public record of discipline, according to the state bar, one legal expert and studies of prosecutorial misconduct said that alone does not necessarily tell the whole story.

Brady violations — the legal term for failure to turn over exculpatory evidence — happen all the time, said professor Morris Ratner of UC Hastings College of the Law. But there are few agencies keeping track of how often and when a lawyer has done wrong. That makes it hard to keep track of the disciplinary history.

The state bar, the main body doling out and recording wrongdoing, only makes public more serious discipline matters, said Ratner.

In other cases, it defers to judges’ opinions since they are an arm of the state courts, even if the bar doesn’t record or make public those decisions. Still, Ratner noted, some legal scholars say the very fact that a judge chastised a lawyer in a public document is itself punishment.

In either event, said Ratner, this leaves a massive hole in misconduct oversight. While the state bar is under-resourced and it defers to judges’ rulings of misconduct in many cases, it does not publicize much of the misconduct that is handed down by judges. Yet the state bar remains the main source of easily available information on legal misconduct.

Several recent studies point to a lack of attorney oversight, especially when it comes to prosecutorial wrongdoing.

A study of statewide prosecutorial misconduct showed how true that is on a large scale. The Northern California Innocence Project, which authored the misconduct study in 2010, looked at the state bar’s record on discipline from 1997 to 2009 and found that of the 4,741 public disciplinary actions reported in the bar’s journal, “only 10 involved prosecutors, and only six of these were for conduct in the handling of a criminal case.”

Even more troubling were the findings on the number of prosecutors publicly disciplined. Out of 600 cases in which courts found prosecutorial misconduct — and in which the study identified the prosecutors — 1 percent were publicly disciplined by the bar. It also noted that repeated misconduct was found in a majority of the lawyers in question.

In 2007, according to a Huffington Post story, the California Court of Appeals found Phil Cline, a Tulare County deputy district attorney, had “improperly withheld an exculpatory audiotape of a witness interview in the murder trial of Mark Soderston, who died in jail before the appeals court’s decision.

Cline was never disciplined by the state bar, was elected district attorney in 1992 and continued to win re-election, even after the court’s chastisement. The other prosecutor in the case, Ronald Couillard, became a judge.

Krishna Abrams, the deputy district attorney who won election over du Bain, also told the Vacaville Reporter in August 2014 she thought du Bain’s resignation was abrupt.

“When Don informed me he was resigning … I was a little surprised and a little disappointed that he was leaving without finishing his term and on such short notice,” Abrams told the Reporter. “Ideally, we would’ve liked more than a week’s notice to transition.”

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