What Will It Take For California To Discipline Former ADA Linda Allen?

Six years in San Quentin and a stabbing passed before Jamal Trulove was retried and acquitted. In his second trial, the prosecutor wasn’t allowed to lie. The jury found Trulove not guilty. But Linda Allen lied in his first trial, and that cost him six years in San Quentin and a stabbing. It’s not that he was acquitted that makes her a liar, although that certainly demonstrates the significance of her lies at the first trial. It’s that the Court of Appeals said so.

[T]he California Court of Appeal ruled that Allen committed “egregious” and “highly prejudicial” prosecutorial misconduct in the Trulove murder trial because Allen presented a closing argument that was a “yarn [] made out of whole cloth.”

Trulove was released and subsequently settled with Frisco for $13.1 million. But one loose end remained, untouched and unmolested by the framing of Trulove for murder. A prosecutor in the office of then-District Attorney Kamala Harris, the one who lied the first time and, despite the reversal replete with its evisceration of her integrity and character, was handed the job of going for two, emerged from the case unscathed: Linda Allen.

This didn’t sit well with Lara Bazelon. While entitled by law to absolute immunity for lying to the jury, Allen was still a lawyer and, as a lawyer, subject to the ethical rules that provide the minimal demands of propriety for any and all lawyers. So Bazelon, a law professor at the University of San Francisco as well as a practicing criminal defense lawyer, filed a complaint against Linda Allen for what she did to Jamal Trulove. It went about as well as expected.

Months went by after Professor Bazelon sent her initial letter to the State Bar. Finally, on October 27, 2020, nearly a year and half after Professor Bazelon sent her initial letter, the State Bar sent Professor Bazelon a short letter stating that it was closing the file simply due to the age of Allen’s prosecutorial misconduct.

Without a coherent explanation or citation to any legal authority, the State Bar stated that the five-year time limit from rule 5.21(A) applied, that Professor Bazelon was not entitled to tolling, and that there was no independent source exception.

Cool trick when the prosecutor’s victim spent six years in San Quentin before being acquitted on retrial, right? But it’s not that the rules couldn’t accommodate the delay, or that there was any prejudice to Allen since the conduct was a matter of record before the trial courts, first and second, not to mention subsequent proceedings. It could. There was both independent source and tolling. Still, the State Bar chose to weasel its way around it rather than deal with an unethical prosecutor.

[T]he State Bar stated that the statute of limitations began to run after the Court of Appeal made its finding of “prejudicial prosecutorial misconduct” against Allen on January 6, 2014. The State Bar stated, “This is the first, and only, time that the court made a finding that Ms. Allen engaged in prosecutorial misconduct throughout the Trulove matters. As such, the five year Rule of Limitations commenced January 6, 2014, and lapsed on January 6, 2019.” The State Bar went on, “There are no court findings to support that Ms. Allen’s misconduct was litigated in the retrial.”

Much as this may sound not entirely irrational, the conclusion had one major failing. The reliance on the date the “court made a finding” as the relevant date for the running of the statute of limitations was, like Allen’s claims about Trulove, made up out of whole cloth.

Notably, the State Bar refused to cite any authority for the proposition that there must be a “court finding” for the tolling exception to apply. None exists. In fact, the State Bar has a long history of advocating just the opposite. The State Bar has long taken the position that the tolling provision must be applied broadly, with the benefits of the doubt applying against enforcing the rule of limitations.

But then there was a companion case, Barnes, in which the same issues with Allen were raised and conceded by the prosecution. The argument that Bazelon’s complaint was too late in Trulove’s case didn’t mean it was late in Barnes’, and it wasn’t. So the State Bar made up another excuse, that even though timely, it didn’t leave the State Bar enough time to investigate before the statute ran.

Professor Bazelon’s letter dated May 10, 2019 was filed a full eight months before the statute of limitations would run under the State Bar’s reading of the limitations period. The State Bar appeared to be arguing that it could reject a timely filed complaint by claiming “insufficient tim[e]” to investigate, even though “insufficient tim[e]” to investigate is not a valid reason to refuse to look into colorable claims of prosecutorial misconduct. Again, the State Bar cited no legal authority to support its position because none exists.

Having exhausted the administrative mechanisms to get the State Bar to even consider the substantive conduct committed by Linda Allen, Bazelon decided to do something rarely, if ever, done. With the help of Jones Day, Lara Bazelon is taking the State Bar of California to court.

TO THE HONORABLE CHIEF JUSTICE OF CALIFORNIA AND ASSOCIATE JUSTICES OF THE SUPREME COURT:

This is an Accusation under California Rules of Court, rule 9.13(d), requesting review of a decision by the State Bar of California to close Petitioner Lara Bazelon’s complaint against Linda Allen, a former Assistant District Attorney in San Francisco.

For all its left coastal progressivism, the California State Bar can’t bring itself to substantively consider the unethical conduct of a prosecutor, something that even Texas found too shameful not to do. What will it take to compel the State Bar to hold a prosecutor to the minimal ethical duty of not lying to a court, to a jury, to put an innocent person in San Quentin to be stabbed?

Will the California Supreme Court entertain this challenge to the State Bar’s dismissal of, and protection of, flagrantly unethical conduct by a prosecutor that was not only found by the court, not only confirmed by the subsequent acquittal, not only conceded by the District Attorney’s office and not only resulted in a human being spending six years in San Quentin? For all the virtue signaling emitting from the left coast, they have an opportunity to just consider, no less hold, a prosecutor ethically accountable. Can they bring themselves to do it? We shall see.

15 thoughts on “What Will It Take For California To Discipline Former ADA Linda Allen?

  1. Tom Donephan

    “subject to the ethical rules that provide the minimal demands of propriety for any and all lawyers” Looking from the outside that “Bar” is not very high.

    Reply
  2. B. McLeod

    Interesting that they even have a limitations period for ethical misconduct. Also interesting that they would take no action where an appellate court has called out misconduct in its opinion.

    Given that the substance of the complaint is something they should pursue, their issue must be with who is raising it. They must have a concern that letting academics who are not impacted by misconduct submit complaints about misconduct would open a floodgate of complaints.

    Reply
    1. SHG Post author

      Is it better to have an interested party grieve or a disinterested party grieve? Your concern, a la 1000 randos from twitter or 64 passionate Yale lawprofs complaining, has merit, but a neutral single academic whose scholarship is ethics in crim law seems to be far enough from the mob to merit serious consideration.

      Reply
      1. B. McLeod

        Yes, they’re kind of throwing the baby out with the bath water if the concern is to just not start down the slope of complaints from academics.

        Reply
  3. mark dwyer

    Is this an issue about what happens to arguably unethical prosecutors, or something broader?

    What has happened to this “ineffective” defense attorney?

    Reply
    1. SHG Post author

      A fair, but collateral, question. Today is about unethical prosecutors and disciplinary committees not turning a blind eye to their conduct.

      Reply
      1. mark dwyer

        If you say so, Scott. Though I might add, I find all the questions about the review of attorney conduct in criminal cases to be interrelated. Perhaps disciplinary committees just don’t like to discipline any lawyer.

        I would even suggest that judicial conduct is relevant as well….

        Reply
        1. Sgt. Schultz

          It’s always an interesting phenomenon when a post is about one thing and someone gripes because it isn’t about something else they want it to be about. Even more so when that issue (defense lawyer incompetence) is often a subject of discussion here. Just not this time.

          Would it be fair to take judicial notice that “tu quoque” remains a logical fallacy?

          Reply
  4. Dan

    A yarn made out of whole cloth? Seems like an odd mixing of metaphors. But it’s interesting, and somewhat disturbing, to see the lengths to which they’ll go to avoid sanctioning prosecutors.

    Reply

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