David Alkire: Nevada County District Attorney, The Union own blame in dismissal of murder case
January 8, 2019
The Union's effort to spread blame in the Fultz murder case fails for two reasons: the principal engine of incompetence, from start to finish, is the District Attorney's Office, certainly not the judge or the defense attorney.
And, equally important: The Union's failure to do its duty as a newspaper during the elections of 2014 and 2018 left too many voters in Nevada County ignorant of the deficiencies of the incumbent District Attorney.
Reviewing the findings in the court's order dismissing the charge against Fultz reveals that all but one of them are directly traceable to the misfeasance or malfeasance of the District Attorney's Office. Only the careless loss of a recorded witness interview by the Sheriff's Department was independent of the conduct of the District Attorney's Office.
Those of us who work in the courthouse have been well aware for years of the problems in the District Attorney's Office, which stem from a lack of qualified and experienced leadership at the top. One example is the frivolous and unsuccessful petition, filed by the prosecution, to remove Judge Anderson from the case. The petition was laden with insinuation and hearsay, but utterly lacking in evidence of bias. An experienced prosecutor reviewing that petition would have advised its author to deliver it to the paper shredder, and get back to work. But there is no person employed in the District Attorney's Office who actually possesses that level of mature judgment.
One lawyer position in the office is at-will with the elected District Attorney, and that is his direct assistant, appropriately titled the Assistant District Attorney. Our DA's Office has had four ADAs in a period of four years. This is the position in the hierarchy where experience and judgment, and the ability to mentor newer attorneys, are especially needed, as the elected District Attorney himself has no experience at all handling serious or violent felonies, and only tried a few misdemeanor cases before first being elected to office. Since being elected he has not tried a single case — the first District Attorney in the history of Nevada County to refuse to do so.
The Deputy District Attorneys, who do the necessary work of the office, suffer from a lack of mature guidance. There is continual turnover among the deputies — two of them left in the last two months, including an experienced felony trial deputy. It is my understanding that none of the deputies working in Nevada City even live in Nevada County. It is likely that they will jump ship at their earliest opportunity, given what they have to look forward to while working in this office.
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The deficiencies of the elected District Attorney have been known for years. The Sacramento Bee did not hesitate to write an editorial calling for his resignation from office due to his arguably corrupt handling of the investigation of a hard money mortgage lender, which the Bee investigated. The professionals who work in the courthouse are well aware of the need for adult supervision in the District Attorney's Office, but the voters do not seem aware of the problems.
This is where The Union should have raised its voice, but did not. When Glenn Jennings lost in the 2018 District Attorney election, it was by the smallest of margins — the incumbent received only 50.7 percent of the vote. A good newspaper that serves its community, as part of its duty to its readership, has an obligation to speak out editorially in such a situation. Merely providing coverage of "he said/she said" accusations and denials, pretending by its editorial silence that there is no right or wrong choice, is a dereliction of the duty of a journalistic enterprise.
The Union's hand-wringing suggestion that the dismissal of the case is "troubling" misses the point. It is exactly the duty of a trial judge, when repeated constitutional violations are committed by the prosecution, to vindicate those constitutional rights by dismissing the case. We need judges with the backbone to do so. What is "troubling" in this situation is the inability of the prosecution to comply with its ethical duties.
The Union's editorial concludes with a dig at the defense attorney, based on "name calling." Really. If it were not for the diligent and persistent efforts of defense attorney Greg Klein, the serious shortcomings of the District Attorney's handling of the case might never have been uncovered. Fultz's lawyer should have been complemented in the editorial, not referenced dismissively as though he did something wrong.
In summary, The Union's effort to spread blame was misguided and disingenuous. The blame for the dismissal of the Fultz murder case is entirely the responsibility of the District Attorney's Office. And we continue to be saddled with an unfit elected District Attorney in large part because The Union failed in its duty to its readership to stand up and take a position when he was challenged, in 2014 and 2018, by more experienced and better-qualified opponents. (Full disclosure: I was his opponent in 2014.)
It must be nice to sit back and criticize everyone involved in the legal process, as though The Union had nothing to do with bringing us to the situation we are in: four more years of lazy, corrupt, incompetent and unethical leadership in the District Attorney's Office.
David Alkire is the court-appointed lawyer for Fultz's co-defendant, Nathan Philbrook, and ran against the incumbent District Attorney in the 2014 election.