An appeals court has ordered the California Attorney General’s Office explain why Santa Clara County District Attorney Jeff Rosen should continue to prosecute an alleged corruption case involving someone with whom he shares personal and political ties.
California’s 6th District Court of Appeal gave the Attorney General, which represents Rosen in the case, until Dec. 10 to respond.
The order to show cause stems from an appeal filed on behalf of Christopher Schumb, one of several defendants accused of conspiring to exchange bribes for gun licenses—known as concealed carry weapon (CCW) permits— issued by Sheriff Laurie Smith.
Schumb’s attorney, Joe Wall, argued that Rosen should recuse himself from the case because of his past dealings with Schumb, a South Bay litigator and political fundraiser.
On Oct. 30, the appeals court halted an upcoming trial against Schumb and his co-defendants—attorney Harpaul Nahal, gun maker Michael Nichols and sheriff’s Capt. James Jensen—to consider Wall’s petition to remove Rosen.
When Schumb’s attorney made a similar case to the Santa Clara County Superior Court a couple months prior, Judge Eric Geffon rejected the argument.
Wall said he’s heartened to see his petition now make some headway.
“We are encouraged by the fact that the 6th District Appeals Court is seriously examining the significant issue presented by way of our writ,” Wall said in a phone call Wednesday.
When issuing the stay on the CCW trial last month, the appeals court asked all parties to the case to address the following questions:
- Where the elect district attorney, determined by the trial court to be a friend of the defendant, is personally involved in the prosecution of the defendant and others for crimes related to alleged public corruption involving another elected official of the same county, is it reasonably possible that the District Attorney’s Office may not exercise its discretionary function in an evenhanded manner, which conflict likely affects the fairness of the prosecution?
- What is the relevance, if any, to the analysis under Penal Code Section 1424 of the elected district attorney being called as a percipient witness at trial in this matter? Does the analysis change if the district attorney is called only as a character witness?
- Does the District Attorney’s Office have a formal recusal policy? What is the relevance, if any, to the analysis under Penal Code Section 1424 of the existence of and adherence to such a policy?
- Should the trial court have conducted an evidentiary hearing on the extent of the personal involvement of the elected district attorney in the investigation or prosecution of this matter?
Rosen has defended his involvement in the alleged bribery case, saying Attorney General Xavier Becerra’s Office already ruled out any conflicts and that he and his second-in-command, Assistant District Attorney Jay Boyarsky, stopped associating with Schumb once their investigation began two years ago.
In a Nov. 12 response to the DA in appeals court, Wall and his colleague, fellow attorney Kathleen Sherman, maintained that Rosen’s investigation was motivated by a political rivalry with Sheriff Smith. They wrote that Schumb’s alliance with Smith “raises the specter” of Rosen using him “as a pawn.”
By personally involving himself and emotionally investing himself in a case against a friend and past political ally, Rosen has violated his own ethical rules requiring recusal, Wall and Sherman argued. That Schumb plans to call Rosen and Boyarsky as character witnesses should disqualify their entire office, the filing goes on to state.
The response to the DA ends by stressing the gravity of the situation.
Because Schumb makes a living as an attorney, the consequences of his legal case “are different from other cases and other defendants,” his attorneys wrote.
Charges must be reported to the State Bar, they added, which has already created “a cloud over Schumb’s law practice.”
“Thus, the very filing of this case exposes Schumb, in effect, to a professional death sentence,” the 45-page filing concludes. “Even if he is acquitted, Schumb might ask, as did Ray Donovan, President Reagan’s Secretary of Labor, who asked in a press conference after he was acquitted of alleged corruption linked to organized crime, ‘Which office do I go to to get my reputation back?’”
While the trial for Schumb, Nahal, Jensen and Nichols is on hold pending 6th Circuit review, two additional indictments in the alleged bribery scheme came down this week.
The latest charges name Undersheriff Rick Sung, Apple Inc. global security chief Thomas Moyer, insurance broker Harpreet Chadha and—once again—Jensen. The new defendants are scheduled to be arraigned on Jan. 11 at the Hall of Justice in San Jose.