A veteran prosecutor who improperly withheld crucial evidence in a San Jose gang murder case until the brink of trial has been suspended for a month without pay for incompetence and misconduct, the Mercury News has learned.
The suspension of Daniel Carr is the maximum penalty District Attorney Jeff Rosen could impose short of demoting or firing the prosecutor, and it cost Carr four weeks' pay -- $16,500. It is the latest example of Rosen's effort to fulfill his campaign promise to share evidence early and fully with defense attorneys to avoid problems that have allowed some prosecutors to ignore judges' orders and conceal evidence.
But this particular case is raising questions about whether the district attorney elected on an ethics platform went too far. Part of the reason is Carr is a hardworking advocate who was engaging in practices that were closer to the norm than the unorthodox behavior of the prosecutor Rosen fired seven months ago.
Carr has filed a 19-page appeal with the county Personnel Board denying any wrongdoing and seeking reimbursement for the four weeks he was forced to take off last month.
"The allegations against me are false and defamatory,'' Carr said in an email. "There are signed documents that establish that I acted with the full knowledge, authorization and at the direction of my Supervising District Attorney, my Assistant District Attorney, and the District Attorney, Jeff Rosen, himself."
Rosen issued a brief general statement but otherwise declined to comment.
"This is an outstanding DA's Office, filled with smart, hardworking and ethical prosecutors who pursue justice and public safety,'' Rosen said. "We go to court every day and hold individuals justly accountable for their actions. One of the reasons we are a great DA's Office is that we hold ourselves accountable for our actions.''
Daniel Carr is not related to former DA Dolores Carr, Rosen's opponent in the 2010 election.
The disciplinary action follows a ruling earlier this year by Superior Court Judge Griffin Bonini, branding the prosecutor's actions as "very troubling,'' "inappropriate conduct" and "a plain, clear violation" involving "a large volume of critically case-changing information."
The problem surfaced early in 2011, shortly after Rosen took office. Twenty-eight days before a group of eight suspected gang members were to stand trial, Carr began revealing a treasure trove of information to their attorneys, including a statement by a co-defendant taken three years earlier and the fact that the alleged murder weapon, a knife, had been discovered in 2008.
Under California law, prosecutors must turn over evidence at least 30 days before trial, though Rosen and many other DAs and judges in California expect it to be turned over far sooner, partly for efficiency's sake. After the belated disclosure of the evidence in this case -- and a last-minute plea agreement by one of the defendants -- the trial was delayed and is now set to start early next year.
The prosecution alleges that the defendants attacked 19-year-old Adrian Medina, who wasn't a member of any gang, at a party on Brigadoon Way in San Jose on July 7, 2007, hitting him over the head with a baseball bat and stabbing him repeatedly.
The Rosen administration initially blamed Carr for the trial delay, claiming the county has had to spend more than $1 million in tax dollars for extra jail costs and legal fees for the indigent defendants. An assistant to Rosen recommended a demotion that would have reduced Carr's $195,340 pay by almost a third.
But Carr effectively argued the trial would have been continued anyway because of the last-minute plea deal by one of the defendants, which significantly changed the dynamics of the case.
The office then reduced the punishment to the maximum suspension, citing several factors that distinguish Carr from prosecutors who merely make mistakes managing big gang cases, according to the DA's notice of discipline. The suspension is the longest Rosen has imposed since he took office nearly two years ago and follows his firing earlier this year of prosecutor Lisa Rogers after concluding that she committed an "outrageous abuse" of her power by pressuring police to arrest her husband's ex-wife.
Carr at no time apologized or conceded he could have handled the case better, according to the notice, leaving the office with "no assurance ... that you will not attempt to manage future cases in a similar manner.'' Rosen has reassigned Carr to handling probation violations.
Carr's conduct stands out for several other reasons, according to the disciplinary notice, including the sheer volume of withheld evidence, the judge's finding of a violation, the need to reassign the case and the inability of the new prosecutor to know what evidence had been provided to the defense. It took two paralegals three months to figure it out.
In his appeal, Carr blames several factors for his failure to make the deadline, including mistakes by his paralegal and the fact that he had just finished trying a 2 ½-month gang case only five days before the evidence was due.
But the argument that has gained the most sympathy among Carr's fellow prosecutors is his claim that gang-unit prosecutors commonly withheld valuable evidence from defense attorneys until the last minute to protect witnesses and their families from the very real risk of being knifed or shot by gangsters in retaliation.
However, in February 2009, Carr told Judge Gilbert Brown -- after defense attorneys expressed concern he was withholding evidence -- that he was "not holding anything back.'' Under the law, prosecutors are supposed to seek a judge's permission to withhold evidence, especially in big cases where late disclosure can cause significant delays. Carr argues in his appeal that his supervisors sanctioned the practice of not going to a judge.
However, his supervisors indicated in interviews with the administration that they did not know how much evidence he was withholding. Carr also claims that Rosen was intimately familiar with details of the case -- including the need to protect a confidential informant's statements -- because the DA signed a wiretap application in the case 36 days before the trial date.
After the scandal erupted, Rosen issued a memo instructing other gang-unit prosecutors to immediately turn over any information they were holding unless they got a judge's permission to hold onto it. At least one other prosecutor complied, Carr notes, contending that proves he, Carr, did nothing out of the ordinary.
But none of the other gang prosecutors had apparently gone as far as Carr had by amassing a mountain of discovery and exceeding the final 30-day deadline.
Carr was motivated by his belief that the defendants were guilty, and was trying to make sure justice was served, according to the notice.
"Yet those feelings, however sincere,'' the document states, "do not trump our obligation to play by the rules. In 'trying to do the best for the case,' you violated discovery rules, which brought disrepute upon yourself, your colleagues and this Office.''
Contact Tracey Kaplan at 408-278-3482. Follow her at Twitter.com/tkaplanreport.