The DA's dodge

With the high-profile Freitas case on his plate, District Attorney Gerald Shea turns camera shy

BY DANIEL BLACKBURN

Re•cuse: to reject or challenge (a judge or juror) as disqualified to act, esp. because of interest or bias.

As for the district attorney, his defense never really rested. Gerald T. Shea’s eyes steeled the moment he spotted the photographer, who had been sitting in a glass-cage reception area, and who now offered a handshake to the county’s top prosecutor.

Which Shea refused.

“No photographs,” he said stiffly, his shoulders squaring defiantly. “It’s our policy to provide our own photos.”

The cameraman’s neck reddened. With this chap, that usually portends problems.

“It’s our policy to take our own photos of public officials,” the news photographer snapped. And snapped, and snapped, and snapped, his lens hovering only inches from the district attorney’s nose as the pair swirled instantly into a spat; the camera’s motor-drive smoked.

This hard-won interview was rapidly going south.

An eventual compromise resulted in a few quickly collected set-up photos in Shea’s sparsely appointed county building office, for which Shea shed his eyeglasses.

This interview had been dangling from a thin thread from the initial request, tendered to the district attorney more than a week earlier. Now this lunatic shutterbug threatened everything. Happily, the hurried session soon ended, but an air of edginess hung heavily.

After the photographer stalked out, Shea settled back in his chair, calmer now, until …

“Is that a tape recorder? No tape recorders,” he said firmly.

At this point the district attorney said he wanted to go “off the record.” (Since the conversation was “off the record” we can’t share details, but suffice it to say that Shea articulated his heartfelt belief that New Times sometimes doesn’t get the story right, which would, he thought, certainly explain his reluctance to tape record the session.)

“Uh, isn’t that the kind of thing you want to say for the record?” I wondered.

Shea smiled thinly and shook his head.

“Uh, won’t a tape recorder help assure that we will get the story right?” I wondered.

Shea again shook his head.

“Uh, do you think this is a trick to get you to say something you don’t want to say?” I wondered.

Yet another thin smile.

An eventual compromise resulted in the district attorney pulling out his own tape recorder, to ascertain the accuracy of mine. With stereophonic tapes whirring, Shea finally spoke, on the record: “So. Here we are.”

He reached for a printed sheet of paper, a copy of the prepared list of questions he had required as a premise for granting the interview, and which New Times had provided.

“You have given me some questions, some of which I can answer, and some of which I cannot,” said Shea, commencing the interview he clearly didn’t want to give. The questions he chose not to address were the ones most relevant to the story.

Answers to these questions are most elusive because pending court action has virtually ended Shea’s office’s public comment on the matter:

Why are judges and prosecutors recusing and excusing themselves in the Kenneth Walter Freitas vehicular manslaughter case?

What is the expressed conflict of interest that caused Shea to decide to reroute the Freitas case to the state attorney general earlier this year?

What new factors have caused Shea to retrieve the case from the attorney general and file a single misdemeanor criminal charge against Freitas?

And what’s the scoop on the county grand jury’s investigation of Shea’s office procedures?

***

To help put this Shea “interview” in perspective, a brief synopsis of prior events is provided:

Kenneth Freitas is the 33-year-old son of the San Luis Obispo County tax assessor, treasurer, and public administrator, Frank Freitas. The elder Freitas has held his elected position for three decades.

The younger Freitas collected 19 traffic citations in the 10-year period spanning 1988-98, all in San Luis Obispo County.

In 1998, Kenneth Freitas was arrested and charged in a road-rage incident. In 1999, while the first case awaited prosecution, he was arrested again, for a second road-rage incident.

The charges were melded into a single San Luis Obispo County Court case.

Freitas’ case is certainly not the only case on Shea’s crowded plate, but it is by far the most vexing and problematic at the moment.

Recusal No. 1: Superior Court Judge Christopher Money, citing no reason, pushed the Freitas file along to a colleague, Judge Donald Umhofer.

When judges recuse themselves, they don’t need to give an explanation. Money, who never gave a reason for his recusal, recently declined to discuss the decision.

Additionally, under the law, any party to a legal proceeding—defendant, attorney, or prosecutor—can ask recusal of a judge for any reason. But only once. Called “the silver bullet,” or “170.6” for its penal code designation, this rule is commonly invoked.

After that, however, there’d better be a good reason for seeking disqualification. A judge can be disqualified from hearing a case only on the basis of three very narrowly defined criteria: (1) the judge has personal knowledge of disputed evidentiary facts concerning the proceedings; (2) the judge has served as a lawyer in the proceeding; or (3) the judge has a financial interest in the subject matter of a proceeding, or in a party to the proceeding.

The California Commission on Judicial Performance, which maintains purview over all state judges, sets out one primary rule regarding a judge’s duty in conflict situations: “Judicial responsibility does not require shrinking every time an advocate asserts that an objective and fair judge appears to be biased; duty of a judge to sit where not disqualified is equally as strong as the duty not to sit when disqualified.”

In Umhofer’s courtroom, four felony charges were eventually reduced to misdemeanors, and Freitas agreed to a plea bargain calling for some jail time and sessions of anger management classes.

Shortly after Freitas’ road-rage probation ended, he drove through a darkened crosswalk in Grover Beach and killed teen-ager Sarah Scruggs as the 17-year-old walked with a young friend. He was traveling within the legal speed limit, and he was not under the influence of alcohol or drugs. He simply did not stop for the pedestrians.

The police report arrived expeditiously to the desk of Deputy District Attorney Lee Cogan, who assigns cases for prosecution.

However, said Sarah’s parents, Elizabeth and Thomas Scruggs, Cogan failed to expedite the report of their daughter’s death. Instead, he sat on it for six months.

When the Scruggses complained to Shea about the delay, the case was retrieved from Cogan.

“We looked at it,” said Chief Deputy District Attorney Steve Brown recently of him and Shea. “And we were going to file [charges against Freitas].”

Then, said Brown, it was noticed for the first time that Kenneth Freitas and Frank Freitas were related.

Recusal No. 2: His subsequent decision to lateral the case to the attorney general is another one that Shea won’t discuss. But Brown, a top lieutenant, had already broached the issue a couple of weeks earlier.

“There was no motion filed with the attorney general’s office. There were simply [telephone] conversations between their office and ours about whether or not they should take the case,” Brown told New Times.

Shea has connections with the attorney general’s office. That was his first job stop after his 1974 graduation from Loyola University Law School.

Brown, during a late-September phone message to New Times, also wanted to address how the case was being reported in news accounts: “There is an important difference in what has been reported. We did not ask the attorney general to take the case. We followed the instructions in the recusal manual that they publish for all 58 district attorney offices in the state.”

He said the contact with the attorney general’s office was “routine:”

“Based on that [the instructions], we contacted them [the attorney general] to spell out the status of the case and the relationship of our office to a member of the Freitas family. They took the case. We didn’t ask them.”

What was that relationship that created a conflict of interest between Freitas and each and every one of the district attorney’s 30-prosecutor team?

Brown said this week “a business relationship existed, because the government is the business, and Freitas and the district attorney are both department managers. But there is no business in relationship to financial business.”

His boss, Shea, would decline to comment on the issue when he eventually had the chance.

At least one San Luis Obispo attorney takes a jaundiced view of the perceived Freitas “conflict.”

“It sounds like a conflict of comfort rather than a real conflict of interest,” said James McKiernan about the initial decision by the district attorney, and by two judges so far, not to become involved in the Freitas tangle.

“If the district attorney is simply uncomfortable with handling the case, it’s not enough. There are ways to insulate the prosecution so as to avoid any conflict that might exist with specific members of the district attorney’s office.”

Defense attorney David Hurst, a former prosecutor, said there are some situations where a genuine conflict of interest is readily apparent.

“Obviously,” said Hurst, “if a kid of someone in the district attorney’s office is accused of a crime, then the case will probably go to the attorney general, because anyone looking at the case can say, ‘Gee, why are they prosecuting one of their own?’ But in the Freitas case, it’s a little different.”

***

Following the August decision by the attorney general not to prosecute Kenneth Freitas, something mysterious happened to convince Shea that he needed to get his hands back on the case, after all. With what he called the “agreement” of the attorney general, Shea retrieved the case and announced that he would file a single misdemeanor charge of vehicular manslaughter against Kenneth Freitas.

Charges were filed hours before the one-year statute of limitations ran out.

The “conflict of interest” for Shea, which apparently existed previously, apparently exists no longer.

But Shea had no plans to discuss any of this on the record, he said, eyeing the twin tape recorders. Why there’s no longer a conflict of interest remains a mystery—for now.

The issue soon will be publicly aired at Freitas’ next scheduled court appearance on Oct. 28. Then, his attorney, Ilan Funke-Bilu, will argue a motion to recuse the district attorney’s office once again. This time, however, the reasons for such a request will be written in the motion, and Shea’s deputies will file a written response to Funke-Bilu’s assertions of bias. Both opinions will become part of the public record.

Funke-Bilu, in his first appearance on behalf of Freitas, already has exercised his one “silver bullet” in the Freitas case by recusing Superior Court Judge John Trice, a former local prosecutor and the newest judge on the local bench. That was recusal No. 3.

Asked by a reporter why the recusal of Trice was utilized, Funke-Bilu joked, “I don’t like bald guys.”

Whatever his real reasoning for Trice’s recusal, Funke-Bilu doesn’t have to be mysterious about his intentions regarding the district attorney. He knows that if he can get the district attorney out of the picture in the Freitas case, then the whole package goes back to the attorney general, who essentially already has declared a dearth of evidence to support a formal charge. That would leave the case in virtual limbo, a pending trial in search of a courtroom. And that would be recusal No. 4.

That possibility is just one more subject the district attorney will not address. He’s willing to talk about improvements and accomplishments in his office since he was elected five years ago, but that’s all.

Shea wants to go off the record again. Once there, he starts talking about the Freitas case. I protest. He proceeds. He wants me to know that the number of letters received by his office on the Freitas case is much different from the number that is being reported.

Because we were “off the record,” it cannot be reported what he said. But he waggled the fingers on one hand and smiled.

I said, “Isn’t that number exactly the sort of thing you’d want on the record?”

The district attorney just shook his head. ³

News Editor Daniel Blackburn can be reached at dblackburn@newtimesslo.com.