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Cooley Irked Over D.A.’s Bid to Disqualify Victims’ Lawyer

Gascón Wants Cady Booted From Habeas Proceeding Based on Duties She Performed in 1989 As Clerk In Prosecution Office, Assigned to Task Force Probing Use of Jailhouse Informants’ Testimony

By a MetNews Staff Writer

KATHLEEN CADY

victims rights attorney

Former Los Angeles County District Attorney Steve Cooley has expressed indignation over efforts of the office he once headed to bar a pro bono lawyer’s representation in a habeas corpus proceeding of the two daughters of a slain deputy sheriff and a now-retired deputy who was the victim, in the same 1979 confrontation, of an attempted murder.

In a memorandum of points and authorities filed Thursday, Cooley opposed the request by the Office of District Attorney George Gascón that his co-counsel, pro bono victims’ rights attorney Kathleen Cady—along with her law firm, Dordulian Law Group—be disqualified from “representing” victims in the proceeding or otherwise “participating” in the matter, which would apparently preclude her from drafting papers. The stated basis for the disqualification is that Cady, while a night law student at Southwestern, served as a clerk in the District Attorney’s Office and in compiling data, referenced the case of the inmate who is seeking habeas relief.

Cooley wrote:

“It is shocking that the prosecution would take the position that the victim’s family is [averse] to the prosecution in this matter (which is a prerequisite for a finding of a conflict of interest in this matter).”

Cady is a former deputy district attorney, as is Long Beach attorney Brentford Ferreira, also representing the victims.

Search for Drugs

The petitioner in the case is inmate Jesse Gonzales. On May 29, 1979, he shot and killed Sheriff’s Deputy Jack Williams who came to his residence, with other deputies and Baldwin Park police officers, to serve a search warrant based on information that illicit drugs were located there.

The attempted-murder victim was then-Deputy Bobby Esquivel who dodged a bullet.

Gonzales’s defense was that he was unaware that those demanding entrance were law enforcement officers, surmising that they were rival gang members, and that, when they broke in, he fired in self defense.

Testifying against him at the guilt phase was jailhouse informant William Acker, himself a murderer, who declared that Gonzales, while his cellmate, told him that he had been tipped off as to the raid that was about to occur and desired to “bag a cop.”

The jury found Gonzales guilty. It also found, as a special circumstance, that Gonzales intentionally killed a law enforcement officer in the course of the performance of a duty.

A separate jury, at the penalty phase, was deadlocked. There was a retrial as to the penalty; Acker testified; the new jury recommended the death penalty; then-Los Angeles Superior Court Judge Sam Ciancetti (now retired) imposed it.

Under the death penalty statute in effect at the time, the finding of one of the enumerated special circumstances, including the one found by the jury, was a requisite of the death penalty being imposed, or a sentence of life imprisonment without possibility of parole being ordered. The Office of District Attorney has indicated that if the special-circumstance is stricken as the result of the habeas proceeding, it will not seek a retrial the penalty phase; Gonzales would then be eligible for parole.

Above is a photograph of Deputy Jack Williams, on display at the Los Angeles County Sheriff’s Department station in the City of Industry. Sunday marked 44 years since Williams, 36, was fatally shot in attempting to conduct the search of a homes where, it was expected, illicit drugs were to be found. The District Attorney’s Office is seeking the disqualification of a pro bono attorney, Kathleen Cady, who is representing Williams’s two daughters in opposing the habeas corpus petition of Jesse Gonzales, convicted of murdering Williams’ victims rights attorney.

Issues Before Lomeli

At issue in the habeas proceeding before Los Angeles Superior Court Judge George G. Lomeli is whether the prosecution committed Brady error—that is, acted in in contravention of the U.S. Supreme Court’s 1962 decision in Brady v. Maryland—by failing to provide the defense with material that could have been used in impeaching Acker’s testimony. Also before Lomeli is the related claim of inadequate assistance of counsel.

Gascón’s office, represented by Shelan Y. Joseph, a “special advisor” to the district attorney, is seeking Cady’s ouster from the case based on her “prior involvement as a law clerk assigned to the Los Angeles District Attorney’s Jailhouse Informant Task Force.”

That task force was set up in response to a scandal that erupted in 1988 over the widespread use of jailhouse informants who would testify for the prosecution in cases in exchange for leniency in their own cases, with inadequate testing by prosecutors as to the reliability of the testimony. Jailhouse informant Leslie White revealed that he and others in the Los Angeles County jail had, between 1979 and 1988, fabricated confessions by cellmates.

The task force identified 130 cases in the past 10 years in which testimony of a jailhouse informant was used, one of those cases being Gonzales’s. Information was collected from deputies concerning that testimony.

Cady’s Memo

On March 2, 1989, Cady wrote an intra-office memo reciting the content of a letter from Stephen S. Trott, then as now a judge of the Ninth U.S. Circuit Court of Appeals, reciting events in a case, People v. Raymond Louis LaScola, which he prosecuted while a deputy district attorney.

Cady wrote: “We received a letter from Stephen S. Trott today stating that he had already spoken with DDA Tony Baretto over the phone regarding a case he handled when he was a Deputy District Attorney involving a jailhouse informant’s testimony.

“What Mr. Trott had previously indicated to DDA Tony Baretto is as follows:

“William Schenley was a potential witness in the above-referenced case which DDA Trott prosecuted. Mr. Schenley, however, was not a jailhouse informant. Rather he was to testify to events he witnessed while out on the streets. Mr. Schenley did not testify in the case because during the proceedings it was learned that Mr. Schenley had committed perjury in People v. Ash. The case against Mr. LaScola was dismissed.”

Joseph’s Allegations

The jailhouse informant in the LaScola case, Joseph said in her memorandum of points and authorities, was Acker. She also referenced a Nov. 2, 1988, memo prepared by Ronald Bowers, the then-deputy district attorney who had prosecuted Gonzales, saying:

“Subsequent to the Gonzales case, Mr. Acker testified in other cases because I had gotten calls from Stephen Trott and other deputy district attorneys inquiring about Mr. Acker.”

Joseph remarked that Cady, while a law clerk, had access to Bowers’s memo and other documents.

The special advisor pointed to American Bar Association Rule 1.11(a) which says that “[e]xcept as law may otherwise expressly permit, a lawyer who has formerly served as a public officer or employee of the government…(2) shall not otherwise represent a client in connection with a matter in which the lawyer participated personally and substantially as a public officer or employee, unless the appropriate government agency gives its informed consent, confirmed in writing, to the representation.”

She commented:

“Because Ms. Cady was assigned to the Jailhouse Informant Task Force, handled cases involving Acker and received communication from a potential witness in the pending evidentiary hearing, she is in violation of Rule 1.11 (a)(2). Of particular significance is rather that she is attempting to interject herself into the current litigation on behalf of her clients by reaching out to the Deputy District Attorney who tried this case and securing a declaration which she has filed with this court. The declaration from the same trial deputy who was surveyed about the informant at issue in the instant case when Ms. Cady was part of the Jailhouse Informant Task Force conducting those surveys. The statute is clear that a former employee of the government, ‘shall not otherwise represent a client in connection with a matter in which the lawyer participated personally and substantially...’ (Emphasis added).” Joseph continued: “There is no question that Ms. Cady, while operating as an employee of the government, personally participated in the Jailhouse Informant Task Force. Moreover, her memo indicates that she reviewed cases involving the informant used by the People in the instant case. This conduct is clearly substantial participation within the meaning of the statute. The only exception to such conflict is if the government agency gives its informed consent, confirmed in writing, to the representation. No such consent has been given to Ms. Cady by the Los Angeles County District Attorney’s office and no such consent will be forthcoming. As such, Ms. Cady has a direct conflict of interest in her representation of the victims in this matter.”

Joseph also wrote:

“[O]n April 19, 2023, Ms. Cady filed several documents with this court including a declaration from Ronald E. Bowers, dated April 14, 2023. Although not a party to this action, by virtue of filing the declaration with the Court, Ms. Cady, has made herself a potential witness in this case, thereby, creating a conflict of interest in her representation of the victims.”

Cooley’s Response

Cooley said in his memorandum of points and authorities in opposition to Joseph’s request that, based in facts contained in Cady’s attached declaration, there is no cause for her disqualification. He wrote:

“•Ms. Cady was a law clerk, and not an attorney admitted to practice law, during the time she was assigned to organize documents regarding cases in which a jailhouse informant testified. Ms. Cady did not provide any legal advice to the government concerning the underlying matter.

“•Ms. Cady never received confidential information regarding William Acker or this case during the time she was assigned to organize documents regarding cases in which a jailhouse informant testified.

“•Ms. Cady never participated “personally and substantially” when she was assigned to the project of organizing documents involving cases in which a jailhouse informant testified. Her involvement in the project was clerical. She did not make any decisions, recommendations or provide advice to anyone regarding the murder cases in which a jailhouse informant testified.

“•Ms. Cady has no recollection of any specific case or document provided by the people in their moving papers.

“•The March 2, 1989 Memo to the File in People v LaScola involves neither the Gonzales case nor informant William Acker.”

Gonzales, through attorney Mark Overland, has contested participation by Cooley and Ferreira, as well as Cady, asserting that victims have no standing in criminal proceedings except where expressly granted by statute. Judges of the Los Angeles Superior Court have taken varying positions on the issue.

Supreme Court Opinion

In a Dec. 3, 1990 opinion, the California Supreme Court, in a split decision, affirmed Gonzales’s conviction and the sentence and, in the same opinion, denied petitions for writs of habeas corpus. Writing for the majority, then-Justice David Eagleson (now deceased) said in finding habeas relief unavailable:

“At both trials, Acker disclosed he was under sentence for one murder, was implicated in other serious crimes, and expected protective custody in return for his cooperation. At the penalty retrial, Acker further conceded that by that time, he had informed and testified in several cases in return for protective benefits. Defense counsel’s cross-examination on both occasions exposed evasiveness and inconsistencies in Acker’s claims about the exact nature of his relationship with the authorities.”

Eagleson also wrote:

“Acker insisted on the stand that he elicited information from defendant entirely on his own initiative, and without official knowledge, promises, or encouragement. Neither the trial record nor the results of appellate counsel’s exhaustive habeas corpus investigation undermines this claim. There are, to be sure, ample indications that in the months and years after Acker’s July 1979 conversations with defendant, Acker frequently informed and testified for the authorities, and that he received substantial benefits for his cooperation. However, neither the record at trial nor counsel’s investigation discloses evidence that Acker’s history of cooperation began before July 1979.”

Justice Allen Broussard (now deceased) dissented.

District Court Ruling

Gonzales sought habeas relief in the U.S. District Court for the Central District of California based on alleged Brady error stemming from the prosecution having withheld from him reports by prison psychologists on Acker made between 1972 and 1979. He did not learn of the reports until 2003.

Then-Judge (now Senior Judge) James V. Selna denied the petition, saying that Acker’s testimony had been “extensively impeached” and that other evidence established the defendant’s guilt.

“At the guilt phase, and to a lesser degree at the penalty phase, this was not a case where it is likely the jury had to believe Acker’s testimony in order to believe the prosecution’s theory,” he reasoned.

Ninth Circuit Decision

The Ninth U.S. Circuit Court of Appeals, in a Dec 7, 2011 opinion by then-Judge (now Senior Judge) Richard Clifton in Wong v. Gonzales, reversed. Clinton said:

“[W]e conclude that Gonzales could make a potentially meritorious or colorable Brady claim based on the psychological reports. In order to allow the state court to consider this Brady claim and to ensure Gonzales can seek federal review of the claim if necessary, we remand the case as to this claim to the district court with instructions to stay and abey the case pending review of this claim by the California Supreme Court.”

He explained:

“This course provides the state court with the first opportunity to resolve this claim. It also protects Gonzales’s interest in obtaining federal review of his claim.”

(Judges William A. Fletcher and Diarmuid O’Scannlain, both now senior judges, each filed a partial dissent. Fletcher concurred in the disposition, though indicating he would rather that the Ninth Circuit decide the Brady issue itself, and O’Scannlain dissented from the reversal and remand.)

Six-Year Delay

Pursuant to Wong v. Gonzales, Gonzales filed a petition for a writ of habeas corpus in the California Supreme Court on Feb. 2, 2013. On May 22, 2019, the high court transferred the case to the Los Angeles Superior Court.

The Office of Attorney General deferred to the Office of Los Angeles County District Attorney to handle it, pursuant to a standing request from Gascón, whose office does not oppose habeas petitions.

Judge William Ryan, who presides over the Criminal Division’s Writs Center, sought briefing as to whether the petition for habeas relief should be dismissed as a successive petition. The Office of District Attorney opposed dismissal, saying:

“The merits of petitioner’s Brady claims should be addressed, especially given those claims focus on withheld impeachment evidence for a jailhouse informant—a source strongly disfavored by modern prosecutors.”

Ryan on Nov. 1, 2022 decided the current petition raises new issues and sent the case to Lomeli. Also pending before Lomeli is the California Supreme Court’s July 18, 2012 order to the California Department of Corrections and Rehabilitation (“CDCR”) to show cause “why petitioner’s death sentence should not be vacated on the ground that he is ‘mentally retarded’….”

Victims’ Position

On April 19, Cooley, Cady, and Ferreira—representing the slain officer’s daughters, Lori Williams and Kari Williams, as well as Esquivel—said in a memorandum:

“In this case, the California Department of Correction and Rehabilitation was not acting on the prosecution’s behalf nor was it under the prosecution’s control and thus was not part of the prosecution team triggering Brady obligations.”

They went on to say:

“The prosecutor assigned to the prosecution of Jesse Gonzales, Ronald Bowers, worked in the District Attorney’s Office, and was not aware of any psychiatric report for William Acker. Respondent [District Attorney’s Office] has made no effort to contact Mr. Bowers to question him about his recollections in this case or his disclosure of exculpatory evidence. For unknown reasons, neither Petitioner nor Respondent has provided the court with the previously sworn testimony of the trial prosecutor. The victims provide the attached Declaration of Ronald E. Bowers…along with the Deposition of Ronald Bowers…for the court’s consideration of all facts and evidence in this matter. As the prosecution of William Acker and Jesse Gonzales were handled by different offices, Ronald Bowers was not in constructive possession of Acker’s psychiatric report.”

The lawyers argued:

“The petitioner murdered Jack Williams almost 44 years ago. The trial prosecutor divulged all exculpatory evidence of which he was aware at the time of the trial. The jury was aware of the informant’s many credibility issues. Any Department of Correction and Rehabilitation reports which have subsequently been disclosed are cumulative and would not have changed the jury’s verdict. Petitioner’s attorney was not ineffective in his representation of Petitioner.

“Even without the testimony of William Acker, there was sufficient evidence to prove that the petitioner knew that Jack Williams was a sheriff’s Deputy when he armed himself, aimed his shotgun, pulled the trigger and murdered Deputy Williams.”

Brady Error Conceded

In a supplemental brief filed on May 23, Joseph conceded: “[T]he People (and specifically, the AG because they were prosecuting the case due to a conflict with the District Attorney’s Office) were aware that Acker had been referred to CDCR and that a CDCR file containing at a minimum the results of that referral did in fact exist. As such, the People were in both actual and constructive possession of the CDCR psychological reports at issue, triggering the prosecution’s constitutional duty of due process to disclose Brady evidence.”

Joseph was a deputy public defender who, like others in the Public Defender’s Office, were recruited by Gascón to serve as deputies in his office. Cooley told the METNEWS on Monday:

“The big unanswered question is whether Shelan Joseph, as Gascon’s Deputy DA overseeing capital cases, has direct and real conflicts since she had previously headed the L.A. Public Defender’s Capital Case Litigation program. There certainly is a shadow over the current district attorney’s active and aggressive efforts to unwind death penalties achieved over many decades by previous district attorneys.”

He added: “Legitimate concerns about Joseph’s possible conflicts could be easily assuaged if she would merely provide lists of all capital cases she worked on as a deputy public defender and all capital cases she has or is working on as a deputy district attorney.”