Criminal Defense Q&A: Can I Disqualify the D.A. If I Know Her? She’s the Daughter of My Last Landlord
Question:
What if I personally know the district attorney who’s pushing my domestic violence case forward ? Is this ok? I’m going through a domestic violence case, being charged falsely due to a lying girlfriend. She wanted to change her statement to tell the truth but the D.A.’s office keeps pushing it forward; it turns out that the head D.A. who is ordering it to proceed was my last landlord’s daughter. Last year the landlord wanted us out on short notice to sell; when I moved I still owed $500, which I never paid due to tight finances. I feel like the D.A is trying to get revenge. Can she be a part of all this? She’s not representing the D.A.’s office at trial, but the paperwork shows everything is proceeding per her order.
Answer:
Disqualifying a prosecutor is a difficult thing to do. To get a prosecutor off a case, you must show that a conflict of interest exists and that, because of the conflict, you are unable to receive a fair trial. Penal Code 1424(a)(1).
As you’ve described it, the D.A. in this instance is your former landlord’s daughter. You suspect that she may have a motive to persecute you because you owe an outstanding $500 debt to her father. Assuming that this is the case, a Court is still unlikely to find a conflict if there is sufficient evidence in your case to support a prosecution independent of your relationship to the D.A. who filed the case (for instance, photographs of the victim’s injuries, incriminating statements made by you, corroborative statements made by the victim or other witnesses, a compelling 911 call).
In other words, if there’s enough evidence to warrant filing charges, then it doesn’t matter that you know the D.A. who actually put pen to paper..
Here are some instances when a Court has disqualified a prosecutor: (1) A criminal defense attorney was appointed assistant district attorney (a top brass position), and the entire D.A.’s office was disqualified from prosecuting cases involving any of the former defense attorney’s clients. (2) A prosecutor was disqualified from a murder case where a staff member he worked with was the mother of the victim. (3) An entire D.A.’s office was disqualified from a case after it was found that the office worked in conjunction with the sheriff’s office to illegally obtain, and subsequently withhold, statements from the Defendant.
Procedurally, disqualifying the D.A. may also prove challenging. A motion to disqualify the prosecutor must include a statement of facts that illustrates the alleged conflict and that is supported by sworn witness statements (read: statements made under penalty of perjury). If necessary, an evidentiary hearing (read: you must bring your witnesses to Court to testify under penalty of perjury) will be held to help the Court determine if a disqualifying conflict exists. Penal Code 1424(a)(1).
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Attorney Michael J. Ocampo is a former deputy district attorney. He focuses his practice exclusively on criminal law so that he can help those accused of a crime — often ordinary, everyday people — ensure that their rights are honored and that they receive a fair opportunity to be heard.
