LOS ANGELES (Legal Newsline) - A California appeals court ruled that a former prosecutor now suing Riverside County for wrongful termination can question the current district attorney over whether the county tried to pressure the DA into lying about whether his predecessor was unethical.
Christopher Ross claims former Riverside County prosecutor Paul Zellerbach forced him out of the prosecutor’s office in 2014 after he refused to suppress evidence that would have exonerated a murder defendant. He sought to subpoena current Riverside County DA Michael Hestrin to testify about union matters as well as a conversation in which Hestrin supposedly told another former DA, Rodric Pacheo, that unnamed “county lawyers” wanted him to alter his testimony about Zellerbach’s character.
A trial judge quashed both subpoenas, saying there were better witnesses to discuss the union and the alleged pressure campaign was irrelevant to Ross’s wrongful dismissal and retaliation claims.
California’s Fourth Appellate Court, District One, in an April 19 decision, granted Ross a partial victory by ruling that he could question Hestrin about whether he was pressured to lie.
Ross’s troubles started in 2011, when he was assigned to prosecute Roger Parker for murder. In 2013, Ross learned DNA evidence exonerated Parker and urged his immediate superior to dismiss the charges. Ross discovered more exculpatory evidence later that year, including a witness who identified Parker’s roommate as the murderer. But before Ross could turn the evidence over to Parker’s defense attorney, he was reassigned to a file unit.
The DA’s Office finally dropped the charges against Parker and he was released in 2014. Ross, meanwhile, was placed on administrative leave after he complained of stress-related neurological problems related to his military service in Iraq. He resigned in April 2014, convinced he had been effectively terminated by Zellerbach’s office as retaliation for his resistance to prosecuting Parker.
In June, Hestrin defeated Zellerbach in the DA election. Ross then sued Zellerback and other officials as well as the county. The cases against individual defendants were dismissed but the appeals court reinstated Ross’s case against the county in 2019.
Ross subpoenaed Hestrin in January 2021 and while that was pending, took the deposition of Pacheo, who had preceded Zellerbach as DA. Pacheo testified that Hestrin agreed Zellerbach was “one of the most unethical lawyers we’ve ever seen as prosecutors” and that “county lawyers” had pressured Hestrin not to say that in his deposition in the Ross case.
Ross then requested any documents showing county lawyers had asked Hestrin to alter his testimony, along with documents regarding Hestrin’s role with the union. On June 4, 2021, the trial court quashed both subpoenas, saying testimony about Hestrin’s conversation with Pacheo was irrelevant and Ross could obtain information about the union from better sources since Hestrin had stepped down as president in 2013.
The appeals court agreed that Ross didn’t need Hestrin’s testimony to obtain information about the union. But it disagreed over the second subpoena. Testimony about a witness’s credibility “is always relevant” and could determine “the county’s consciousness of guilt.”
“We conclude that where, as here, a party presents credible evidence that another party has attempted (directly or through its agents) to alter the testimony of awitness about a material issue in the case—including the credibility of a witness likely to testify about a material issue— evidence regarding the alleged attempt is relevant, potentially admissible, and, thus, discoverable,” the court said.
The county argued Pacheo’s testimony was “double hearsay” – a witness’s recollection of what somebody said another person told him – but that isn’t a valid basis to bar discovery, the appeals court said. The court also said the fact the “county attorneys” were unidentified gave good reason to depose Hestrin to find out who they were.