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Saturday, Apr 27 2013 10:00 PM

ROBERT PRICE: Should the DA have opted out of carrot-hauler's hit-and-run case?

By The Bakersfield Californian

Those who are adept at reading between the lines may have noticed an awkward and unanswered question in Steven Mayer's April 14 article, "Death in a crosswalk." Several people I know did.

Mayer told the story of two women, a mother and her grown daughter, who were struck and killed by a carrot-hauling hit-and-run truck driver in December 2010. Last month, their family was awarded $15 million, one of the largest civil trial judgments in Kern County history.

Afterward, members of the jury who had voted unanimously on both of the counts before them expressed amazement that the Kern County District Attorney's Office had declined to file criminal charges against the driver, Antonio Oliva. That's how damning the case against Oliva seemed to them. The California Highway Patrol obviously agreed: It had recommended that Oliva be charged with felony hit-and-run and vehicular manslaughter.

The unanswered question is this: Since Oliva's employer, E&M Trucking, contracts with Grimmway Farms, one of the largest carrot growers in the nation, should District Attorney Lisa Green have recused her office from making the call on whether to file charges? She is married to Jeff Green, Grimmway's longtime general counsel.

DA Green didn't think so then and still doesn't today. "I did not talk to Jeff about it," she said Friday. "But the fact that (the plaintiffs) didn't sue Grimmway made it not really a conflict." She said two prosecutors in her office, Scott Spielman and Mike Yraceburn, looked hard and long at the evidence and "made the call" not to file charges. Then they briefed Green, who was not otherwise involved.

Indeed, Grimmway was not named as a defendant. Scott Howry, the plaintiffs' attorney, filed against E&M Trucking; the company's owner, Emiliano Perez; and the driver himself. Spielman said he asked Howry if Grimmway was a possible defendant in the civil suit. "He said 'no,'" Spielman said.

Howry's memory of the exchange was slightly different. "I don't remember him asking me that," he said. "The answer at that point in time was that we didn't have any plan to name them unless facts developed during the case that suggested they had legal responsibility." In other words, Howry said, it wasn't likely but he wasn't quite prepared to slam the door on the possibility.

Jeff Green, Grimmway's top attorney, said he didn't know anything about the case until he read about it in The Californian two weeks ago. In any case, he said, the Grimmway connection to the hit-and-run was tenuous to the point of nonexistent.

It was tenuous, yes -- but not that tenuous. Oliva had hauled a Grimmway load to a local dairy and on the way back had hit the women, who were crossing -- in a crosswalk and with a green light -- near the intersection of South Union Avenue and Panama Road. Oliva claimed he had dropped off his trailer in the Grimmway yard after his shift that night, but for reasons never made clear drove it home instead.

Oliva also lied (or, more generously, was in error) about not having been at the intersection in question that night. So, given these and other discrepancies, why didn't Spielman and Yraceburn recommend prosecution? Spielman pointed out that a language barrier may have prevented Oliva from understanding what he was being asked by investigators or answering as he intended. Some of the prosecution's likely contentions could have been reasonably explained away, he said. And, perhaps most important, the burden of proof in a civil trial (a "preponderance of evidence") is considerably lower than in a criminal trial ("beyond a reasonable doubt").

Attempting to saddle Grimmway with some degree of responsibility here does in fact seem like a huge reach. That doesn't mean the plaintiffs couldn't have decided to try. Deep pockets like those of the Bakersfield mega-grower can be a liability. "In my experience with Grimmway, I don't see a lot of cases where (a potential plaintiff) is hesitant to sue," Jeff Green said.

In view of that fact, should the DA have cited a potential conflict of interest and handed it over to the attorney general or, as has been done before, the Tulare County DA?

Some prominent legal ethicists say yes, if only to stay away from the appearance of a conflict.

Scott Cummings, a law professor at UCLA, said he can't say with certainty, but "it would seem clear to me that at the very least the DA should have publicly disclosed the connection to Grimmway. Her failure to do so raises the appearance of a conflict, and of course prosecutors are held to a higher standard of ethical conduct given the power that they wield over the criminal process."

Jack Marshall, president and founder of ProEthics, a legal ethics consultancy, agreed. "As a DA, by regulation and law, (she) has to avoid the appearance of impropriety. ... This diminishes public trust."

Of the five legal ethicists I asked, only Rex R. Perschbacher, chairman of the UC Davis School of Law, was willing to cut the Greens some slack. But only a little.

"I cannot say the matter was not appropriately handled," he wrote, "even if I wish lawyers, including DAs, were more careful with regard to appearances."

And that's all this seems to be -- a matter of appearances. But when it comes to community image and public trust, appearances do matter.

Email Editorial Page Editor Robert Price at rprice@ bakersfield.com.

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