CoCo District Attorney Selection Marred by Ethical Lapses 

One of the finalists has been accused of unethical and possibly illegal behavior while two others are under fire for plagiarism.

click to enlarge County prosecutor Paul Graves is one of the finalists for the DA position. - PHOTO COURTESY FACEBOOK.COM
  • Photo courtesy Facebook.com
  • County prosecutor Paul Graves is one of the finalists for the DA position.

Contra Costa County is in the midst of appointing a new district attorney in the hopes of re-establishing trust and integrity to an office that has long been plagued by scandals, mismanagement, and corruption. County supervisors say that one of the most important tasks of the new appointment will be changing an ingrained office culture that has been resistant to new trends in criminal justice such as bail reform, restorative justice, and effective re-entry programs.

"We have a great need to build a perception of integrity and trust in the prosecutor's office," said Supervisor John Gioia, who represents Richmond and other West County communities. "We also need someone who understands the importance of racial disparity and acknowledges it exists, and we need someone who will apply a new approach to justice and pre-justice programs."

Yet despite the supervisors' stated desire to change the DA's office culture, the appointment process for the new DA has thus far been characterized by charges of plagiarism and allegations of unethical and possibly illegal behavior. The most recent revelation involves a stinging rebuke of prosecutor Paul Graves, who is vying for the DA's spot, by the California Republican Party for misrepresenting his authority as a prosecutor and for engaging in likely illegal activities related to the 2015 campaign of East Bay state Sen. Steve Glazer.

Residents have also complained that the county supervisors' process for selecting the new DA has not been transparent enough. That claim gained some momentum on Aug. 1 when all five supervisors picked the exact same five finalists from a list of 12 applicants. The improbability of supervisors making uniform choices without violating California's open meeting laws raised eyebrows. In fact, county employees and residents gave the finalists the dubious nickname of "The Miracle Five."

The office of the DA arguably wields the most power in the county. The DA determines criminal justice policy and practices and is answerable only to the voting public and the California attorney general. The DA also has a direct influence over the county's law enforcement budget, which takes up the largest portion of the county's annual operating expenses.

Former DA Mark Peterson left office abruptly in June in the wake of a felony perjury conviction related to the mismanagement of his campaign finances. The county put out a job announcement for a replacement to finish Peterson's term, which ends next year.

Supervisor Federal Glover said he is keenly interested in appointing someone who can clean up the office's reputation for scandal and disreputable practices. "This is a key and important position. I think there's been a lot of work done in clearing up some of the issues there, but there is still some residue of what was there," Glover said. "So we need someone who can come in and take the bull by the horns and turn this office around where there's still needed attention."

However, the process to appoint a new DA was rocked last week by a letter sent anonymously to county officials and the East Bay Times. The letter alleged that Judge Diana Becton, another of the five finalists for the job, plagiarized portions of her application essay. Then an enterprising KQED reporter found that another applicant, veteran prosecutor Tom Kensok, had also cut and pasted some portions of his essay. Both Becton and Kensok claimed the copied sections were an oversight. Kensok is a self-described "nerd" who has worked in the office for 30 years and is known to have a progressive approach to criminal justice. And Becton is a progressive superior court judge who has been on the bench for 22 years, though she has no experience as a prosecutor.

The other two finalists are Patrick Vanier, who is a deputy district attorney in Santa Clara County, but worked as a prosecutor in Contra Costa County until 2006; and Danielle Douglas, who has been on the bench in Contra Costa County Superior Court since 2014 and before that worked as a county prosecutor for 13 years.

Meanwhile, Graves, a law-and-order Republican, had ethical problems in 2015 when he misrepresented his authority in a threatening letter he sent to Glazer's campaign, when Glazer was running for the District 7 state Senate seat.

In his April 9, 2015, letter, Graves misused his status as a prosecutor to demand that Glazer stop using the iconic Republican elephant logo on his campaign materials. Graves, who supported Glazer's opponent, Susan Bonilla, wrote that "for a liberal Democrat candidate like Mr. Glazer to deceive Republican voters by superimposing iconic Republican Party images... such as the GOP elephant on Mr. Glazer's campaign material is a new low in dishonest political campaigning."

According to a 2015 story in the East Bay Times, Graves went on to demand that Glazer's campaign immediately stop using the materials and that it destroy any other copies in its possession. He also demanded that Glazer publicly apologize and further notified the campaign that he had a right to sue.

The problem with Graves' threats was that he had no right to sue, and his posturing as a Contra Costa County prosecutor in order to intimidate Glazer's campaign staff was unethical and potentially illegal, according to a very pointed email Graves received from the California Republican Party Vice Chair Harmeet Dhillon, an attorney who represents the state GOP on matters of intellectual property.

Dhillon made it clear that Graves had no authority to sue and that his threatening letter to the Glazer campaign violated professional ethical standards. "Your conduct in using your status as an attorney, which includes the publicly known fact that you are a prosecutor with the Contra Costa County District Attorney's office, to gain leverage in this matter by masquerading as a person of standing to make threats, is an abuse of those positions and of ethical standards," Dhillon wrote.

Graves immediately complied with Dhillon's demand to stop threatening the Glazer campaign and cease misrepresenting himself as a representative of the California GOP.

Graves was out of town and unavailable for comment on the incident. He is backed by law enforcement groups and was endorsed by the East Bay Times.

Graves also is one of two candidates who has filed papers to run for DA next year during the general election. And he has compiled an impressive campaign war chest of just over $100,000 as of his June 30 campaign statement. His list of contributors includes many old-school prosecutors, such as former DA Robert Kochly and former Chief Assistant District Attorney Brian Baker — the two top prosecutors who were behind the politically motivated prosecution of Deputy District Attorney Michael Gressett in 2008. The case against Gressett fizzled almost immediately but not before exposing an office culture of corruption, self-serving prosecutorial practices, and a brazen, top-down disregard for criminal justice ethics.

"We are confident that all of his supporters understand that as district attorney, Paul Graves will be beholden to no one except the people of Contra Costa County he has pledged to serve," wrote his campaign consultant, Jamie Fisfis with Chariot Campaigns, in an emailed statement.

Meanwhile, Becton, in her application for DA, used portions of Martin Luther King Jr.'s "I Have a Dream Speech" and a letter co-written by U.S. Sens. Kamala Harris and Rand Paul regarding the reform of the criminal justice system without attribution. Becton's application also included unattributed snippets from district attorney websites in Alameda and San Francisco counties.

Becton said in a written statement that she was not trying to adopt the ideas as her own and that her intent was to highlight issues, such as bail reform and inequities in the criminal justice system. "Even though the questionnaire responses were not written in the same manner, or with the same rigor that I would use when submitting an academic paper, I tried to bring the brightest thinkers and the best ideas to the discussion," Becton wrote. "The ideas are not new or based upon my original thought, and I do not attempt to pass them off as my own."

Also caught up in the plagiarism scandal was candidate Kensok, who cut and pasted some passages from the Harvard Business Review and various studies on crime and mental illness. Kensok said he regretted not attributing the sources, but that it was never his intention to pass off the ideas as his own original thoughts. "It's nearly impossible to find a brief or a motion that was not plagiarized from a pre-existing document," Kensok said.

The board of supervisors is scheduled to interview the five finalists for district attorney in Martinez on Sept. 12. 


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