'Misconduct' prosecutor Liroff defends his record

Palo Alto attorney Lane Liroff among county prosecutors named in report by Innocence Project, being reviewed by State Bar Association

Lane Liroff, a Santa Clara County deputy district attorney from Palo Alto who was listed in a "prosecutorial misconduct" report, Wednesday sharply defended his record.

Liroff is among six Santa Clara County prosecutors listed as possibly committing misconduct during a trial in a report by the Northern California Innocence Project at the Santa Clara University.

Other deputy district attorneys listed include Troy Benson, James Demertzis, Benjamin Field, Jaime Stringfield and Brian Welch.

Liroff could not initially be reached but on Wednesday he responded to the Weekly by e-mail. The court did not make a finding of "prosecutorial misconduct," he said.

"Indeed, there is no such finding in the case. This case has a convoluted fact pattern.

"The claim advanced in the law review article wrongly oversimplifies and makes sensational something to serve the authors' purpose. A fair reading of the case demonstrates that their claim is not justified," he said.

Field's listing was the most serious of the six cases cited. It alleges repeated misconduct, including failure to disclose exculpatory evidence in more than one trial that would have shown the defendant did not commit the crime. In September, the California State Bar Association suspended Field from practicing law for up to five years, according to the association's database.

Liroff's reported error in a 1996 first-degree murder trial led to the conviction being tossed out in 2007 for "failure to disclose exculpatory evidence." Liroff ran for a judgeship in 2008 but lost in a run-off election with San Jose attorney Diane Ritchie. He has no public record of discipline or administrative actions, according to the bar association. But state law limits what the association can tell the public, a spokesperson said.

The "Misconduct Study" looked at 4,000 state and federal appellate rulings regarding cases of prosecutorial misconduct between 1997 and 2009. Six hundred prosecutors were found to have committed acts of misconduct that ranged from technical errors to deception and hiding evidence.

The Innocence Project's study revealed 707 cases in which courts explicitly found that prosecutors committed misconduct. In about 3,000 cases, the courts rejected the allegations and in another 282, the courts did not decide if prosecutors' actions were improper; the trials were deemed otherwise fair.

Misconduct fell into two broad categories, either "harmful error" or "harmless error." Harmful-error cases, the most egregious, resulted in misconduct that altered the fundamental fairness of the trial. But the study found some "harmless" misconduct might have involved infractions that were just as serious and in some cases were identical to those in harmful cases.

Santa Clara County had nine cases of harmful misconduct and 33 cases of harmless error, according to the report. San Mateo County had five cases of harmful misconduct and five cases of harmless conduct.

In the 1996 case, Liroff prosecuted defendant Dung Pham, who was convicted of first-degree murder for a fatal shooting outside a cafe. At trial, the defense noted that another man was the initial suspect but a forensic analyst testified that he did not find evidence of gunshot residue on that suspect's hands.

The defense later learned of lab notes showing the analyst only tested 59 percent of the sample residue taken from the initial suspect's hands -- notes which Liroff's prosecutorial team failed to disclose to the defense, according to the report.

Subsequent testing of the remaining samples by the defense found there was gunshot residue present on the initial suspect's hands. A U.S. District Court found the failure to disclose by Liroff was material to Pham's guilt or innocence and violated his due process. The court granted Pham's petition for a writ of habeas corpus, according to the report.

Other county prosecutors were also found to have excluded crucial evidence.

DeMertzis used an improper argument and improperly examined a witness in a trial of a man convicted of petty theft for stealing two fans from Home Depot, a Court of Appeal found. The court ruled DeMertzis' questions about race were irrelevant and could have inflamed the emotions of a jury. The man's conviction was overturned.

Demertzis said Tuesday that the case was complicated and he didn't think the judge or defense thought his actions were misconduct.

Troy Benson did not disclose a videotape of a Sexual Assault Response Team (SART) examination in the 2006 case of Augustin Uribe that supported a defense expert's testimony that no sexual assault had occurred. The conviction was reversed, according to the report.

But Benson's situation illustrates the complexity of determining who is responsible for misconduct, according to Cydney Batchelor, deputy trial counsel for the California State Bar Association.

Prosecutors are held to a higher standard in criminal cases, where the prosecution as an entity is considered the whole team -- including investigators, district attorneys and police. If police withhold or omit evidence, courts will still find prosecutorial misconduct that might not be the fault of the attorney, she said.

Benson said Tuesday his case was far more complicated than as described in the report.

"The defense knew about the video before we did. The court said it was not a failure to turn over exculpatory evidence. The court said the evidence could possibly be exculpatory, and that Mr. Uribe should get a new trial. It's not that anybody intentionally withheld evidence," he said.

Batchelor said the bar association is reviewing the 159 cases where misconduct was harmful and resulted in setting aside a conviction or sentence. But she cautioned that flagging a case by the court doesn't mean the attorney necessarily committed an ethical breach.

The report also used media reports and footnotes in court decisions to identify misconduct. Before disciplining any attorney, the bar association will decide if each situation meets its "burden of proof as clear and convincing" misconduct, she said.

The report found that the courts routinely do not report the misconducts to the bar association, although they are required to do so in the "harmful" cases. Batchelor said it appears many of the cases were not reported but that might have been due to ignorance, she said.

The association's new chief trial counsel, James Towery of San Jose, had already planned a rigorous training program before the report came out, she said. The association plans ethics training for both defense attorneys and prosecutors, she said.

The report also recommended that the association be more transparent, but as a prosecutorial agency, confidentiality statutes limit what information the association can make public, she said. Greater transparency is only possible if the law changes, she said.

Santa Clara County District Attorney Dolores Carr said Monday that in her experience as a judge and DA such cases are relatively few and that most prosecutorial misconduct is not malicious but a product of insufficient training and experience.

"There are a lot of pitfalls in prosecuting cases. Rules change, sometimes unpredictably," she said. "The Innocence Project report recognizes that the vast majority of prosecutors utilize fair methods in their work. In fact, less than 4 percent of California's prosecutors were found to have committed 'harmful error' over a period, which extends back in some cases 30 years. …

"While prosecutorial misconduct is always a serious issue, the public should not assume that where there is smoke there is always fire."

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Like this comment
Posted by Hmmm
a resident of East Palo Alto
on Oct 20, 2010 at 11:08 am

Why is it relevant the Liroff lives in PA? Isn't it more relevant, overall, that these incidents occurred among DDAs who represent the SC County?

Like this comment
Posted by Ada
a resident of Midtown
on Oct 20, 2010 at 11:54 am

Agree, why is it relevant that he lives in Palo Alto? Seems like Ms. Dremann has something personal against the man...

Like this comment
Posted by Douglas Moran
a resident of Barron Park
on Oct 20, 2010 at 4:28 pm

Douglas Moran is a registered user.

To "Hmmm" and "Ada":
If you had taken the name of the web site "" into consideration, you might have figured out why the Palo Alto connection was legitimately mentioned.

Like this comment
Posted by Sue Dremann
Palo Alto Weekly staff writer
on Oct 20, 2010 at 5:22 pm

Sue Dremann is a registered user.

"Hmmm," "Ada":

We report about people and events related to Palo Alto. I have absolutely nothing against Mr. Liroff and don't know him personally.

Like this comment
Posted by A-Good-Attorney's-Hard-To-Find
a resident of Another Palo Alto neighborhood
on Oct 20, 2010 at 7:06 pm

Perhaps one of the local papers might ask Delores Carr if the employees of the SCC District Attorney's Office had better supervision, if these situations would have occurred?

Might be interesting to ask the new DA what he plans to do to make certain that these sorts of things don't happen on his watch ..

Like this comment
Posted by Jay
a resident of Green Acres
on Oct 20, 2010 at 7:56 pm

[Post removed by Palo Alto Online staff.]

Like this comment
Posted by Zee
a resident of Barron Park
on Oct 20, 2010 at 8:03 pm

Haha, "these sort of things don't happen of his watch.." hahah you really made me laugh. Rosen himself is probably doing the same thing. This is how the justice system game is played in this country: Police will get a suspect, DDA will get a conviction. Who is the one searching for the truth? Don't tell me the public defender.

Like this comment
Posted by Zee
a resident of Barron Park
on Oct 20, 2010 at 8:07 pm

I don't blame DDAs for misconduct. The justice system allows them to run a mock with it, and with innocent people. They have to meet their "conviction rate" quotas that their bosses set for them. They probably don't want to do what they do, but they have to do it. Ultimately, they convince themselves they are just doing their job, so that they have a clear concious.

1 person likes this
Posted by Zee
a resident of Barron Park
on Oct 20, 2010 at 8:08 pm


Like this comment
Posted by Adam Matthew
a resident of Monroe Park
on Oct 20, 2010 at 8:11 pm

"Santa Clara County District Attorney Dolores Carr said Monday that in her experience as a judge and DA such cases are relatively few and that most prosecutorial misconduct is not malicious but a product of insufficient training and experience"

[Portion removed by Palo Alto Online staff.]

I hope that the DA's and their assistants in Santa Clara, and yes, particularly in Palo Alto, get punished for their frequent misconducts. This is America, a country that prides itself on civil liberties and civil rights. Such misconduct and violations of civil rights by the authorities should be severely punished.

Like this comment
Posted by Outside Observer
a resident of another community
on Oct 20, 2010 at 8:56 pm

Why does this surprise anyone.

A corrupt justice system is just one more aspect of the new 3rd world America.

Like this comment
Posted by Zee
a resident of Barron Park
on Oct 21, 2010 at 6:45 am

Too much pressure on DDAs to do the wrong thing rather than the right thing. What prosecutor wants to admit, after bringing up charges, that they made a mistake and drop those charges? NONE NONE NONE. Some would lie and cheat, and some would just act stupid. But who is the loser at the end of the day? An innocent person who got wronged by that DA. If you are a poor innocent man or woman then forget about the system working in your favor. If you are a rich or middle class innocent man and woman then pray your money will get you out after the lies and deceipts of the DA. Either way, you either lose your life savings and make your family poor and get out, or you lose your life savings, make your family poor, and get stuck in prison for something you didn't do. As a poor innocent man or woman, forget about it. You are paying for someone else's crime.

This is why corrupt prosecutors need to be punished to the extreme, and go to jail even. This way other prosecutors will think twice before they bring charges and make lies as they go to protect their first lie.

Like this comment
Posted by Hmmm
a resident of East Palo Alto
on Oct 21, 2010 at 9:25 am

Yeah, Doug Moran, I got the connection between the place Liroff lives and this publication. So? It still seems irrelevant. What's relevant is where Liroff works. However, does he lives in PA or does he work at north county courthouse in PA? Is that the point of the article? It's ridiculous to think his living in PA has any bearing on the story, whereas how he conducts his work life if the important factor.

Ms. Dremann, I never thought you had anything personal going on in this story - that silly comment, made by Ada, didn't even make sense.

Like this comment
Posted by JT
a resident of Crescent Park
on Oct 21, 2010 at 11:39 am

To "A-Good-Attorney's-Hard-To-Find," the question of supervision is a valid one. This incident involving Lane happened when George Kennedy was D.A., and the office had a poor reputation for ethics. Simply put, winning was more important than following the rules. Many DDAs were disciplined during Kennedy's era and convictions were flipped by the appeals court all the time. The special treatment cops got when they broke the law was appalling.

Remember Luis Verbera, a Palo Alto police officer who handcuffed women he pulled over for traffic violations, and then sexually assaulted them in his car before letting them go with a warning that they would be killed if the ever spoke about it? Kennedy gave Verbera a plea bargain that called for 12 months in jail. That's how it worked with Kennedy. Cops and other government employees routinely got special treatment. Remember Robert Gremmenger?

It was also Kennedy's office that concealed from defense attorneys videotapes VMA made of kids who were involved in molestation cases.

Despite the campaign Rosen ran this spring, things improved a bit under Dolores Carr, though that was because she never became engaged in the day-to-day activities of her office, allowing her DDAs to do whatever they wanted to do. No leadership. I think you could argue that she was corrupt in allowing her money to accept a "retainer" from a murder victim's family, but that's about all you could find on her.

I'm hoping Rosen sticks to the ethics he campaigned on. What worries me is that he has a bunch of Kennedy's people surrounding him. He'll need to keep them on a short leash if he is to deliver on his ethics pledge.

Like this comment
Posted by JT
a resident of Crescent Park
on Oct 21, 2010 at 11:41 am

I meant VMC (not VMA), which stands for Valley Medical Center

Like this comment
Posted by Hmmm - to JT
a resident of East Palo Alto
on Oct 21, 2010 at 12:02 pm

I never knew the details in the Verbera case. Wow, bad! Is there info online that I can read up? I had a weird run in w/him years ago and wasn't all that surprised when I read in the papers about him.

Like this comment
Posted by Denese
a resident of Old Palo Alto
on Oct 22, 2010 at 5:47 am

Regardles as to where whom lives, the bottom line is there was misconduct in the DA's office. Now let's see if Carrr reports them to the bar association or do she just let it go.

Oh... yea... I don't care whom else reports these attorneys, let's see what her role will be. ] don't know this person, only her reputation from articles and public opinon and it is not pretty. Why is she the DA?

Like this comment
Posted by Jojo
a resident of Green Acres
on Oct 23, 2010 at 3:21 pm

"Santa Clara County District Attorney Dolores Carr said Monday that in her experience as a judge and DA such cases are relatively few "

Dolores Carr to kiss my ass !

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