Almanac

News - March 20, 2013

Deputy DA 'reproved' by state bar

by Renee Batti

A prosecutor in the San Mateo County District Attorney's Office has been "privately reproved" for misconduct by the California State Bar, according to a letter sent to a victim's advocate who filed a complaint with the agency in 2010.

Following a state bar investigation into the complaint, Deputy DA Melissa McKowan "stipulated to committing an act of professional misconduct," and the state agency has ordered her to attend a one-day state bar ethics school, according to the letter.

The victim's advocate who filed the complaint, Victoria Balfour, said she is making the March 6 letter from the state bar public despite the sender's admonition that the correspondence and the information it contains must remain confidential.

"I did it out of service to the public," she told the Almanac, adding that she believes she isn't violating any laws in releasing it.

Ms. Balfour's complaint stemmed in large part from Ms. McKowan's handling of the prosecution of Dr. William Ayres, a child psychiatrist accused of molesting boys who were his patients. Dr. Ayres was arrested in 2007 and tried in San Mateo County Superior Court; the case, prosecuted by Ms. McKowan, ended in a mistrial in 2009.

In her complaint, Ms. Balfour accused the prosecutor of a range of unethical and inappropriate behavior, including lying about her contact with potential witnesses who could have successfully challenged Dr. Ayres' defense that, rather than molesting his patients, he was performing appropriate physical examinations.

She also cited examples in her communications with the state bar investigator of other incidents of alleged misconduct involving two other cases of sexual molestation Ms. McKowan handled for the DA's office, including bullying the families of victims and lying about a victim's willingness to testify.

Ms. McKowan did not return phone calls from the Almanac seeking comment for this story.

The letter from the state bar cited violation of the Business and Professions Code Section 6106 as cause for the sanction. That section addresses "the commission of any act involving moral turpitude, dishonesty or corruption."

The letter did not specify which of the accusations in Ms. Balfour's complaint were supported in the investigation, and which, if any, were found to have no merit.

According to a report from the state bar, the agency's disciplinary actions for violations of the Rules of Professional Conduct or the State Bar Act range from disbarment for the most serious offenses to warning letters for lesser offenses. A "private or public reproval" is a mid-level sanction, and can be imposed "for misconduct not warranting a suspension or disbarment," and as "part of a stipulation and settlement before the filing of disciplinary charges," according to the report.

County DA Steve Wagstaffe told the Almanac that he was aware the state bar was investigating a complaint against Ms. McKowan, and his office "looked into the matter" on its own.

"We took appropriate action" as a result of the DA office's investigation, which was concluded last year, but he is legally precluded from saying what the action was, he said. "We don't wait to see what the state bar decides" when there is a complaint against a prosecutor, he added.

Ms. McKowan is still working for the DA's office, he said, and continues as the prosecutor in charge of retrying Dr. Ayres, whose case was to begin last week but has been postponed while his attorney seeks a change in venue.

Mr. Wagstaffe said Ms. McKowan was the right choice to prosecute the case because she is already familiar with the "massive amounts of documents" already generated by the previous trial and numerous court hearings over the years.

Ms. Balfour continues to challenge the DA office's handling of complaints against Ms. McKowan, and noted that she turned to the state bar to investigate the prosecutor after Ms. Balfour and victims' families were "stonewalled" in 2010 when they complained to Mr. Wagstaffe's office.

She said her concerns were primarily with victims of abuse and how they are able to seek justice in San Mateo County's court system. "This isn't about punishing a prosecutor," Ms. Balfour said. "It's about victims' rights."

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