Metropolitan News-Enterprise


Friday, October 31, 2003


Page 1


C.A. Blasts Orange County Prosecutor’s ‘Outrageous’ Conduct

But Court Upholds Conviction, Saying Most of Misbehavior Occurred Out of Jury’s Presence


By KENNETH OFGANG, Staff Writer/Appellate Courts


A prosecutor engaged in “outrageous misconduct” when he told a judge he intended to violate the judge’s order limiting his closing argument, and proceeded to do so, the Fourth District Court of Appeal said yesterday.

But while Orange Deputy District Attorney Mike Flory’s actions “warrant public condemnation” and may justify discipline, they don’t entitle Stephen Walter Pigage to a new trial on drug charges, the court ruled.

“Flory’s complete disrespect for the court’s authority, repeated threats to disobey a court order, and subsequent violation of that order, offend our sense of the court’s inherent dignity,” Justice Eileen Moore wrote for the court. “We publish this case because neither the prosecutor nor the Attorney General seemed to understand that Flory’s actions constitute attorney misconduct.”

Moore explained:

“When the trial court asked Flory why he persisted in challenging the court’s authority after a contrary ruling, he replied, ‘because I can, and I’m within the rules....’ When this court pressed the Attorney General to condemn Flory’s actions, he refused and claimed he did so, ‘because that’s my responsibility.’....We affirm the judgment because most of the objectionable conduct occurred outside the presence of the jury and did not otherwise affect the trial. Nevertheless, we direct the clerk of the court to forward a copy of this opinion to the California State Bar for review and further proceedings.”

Undercover Officer

Pigage was arrested shortly after what police said was a hand-to-hand sale of a case of mini-psuedoephedrine tablets to an undercover officer who had been introduced to Pigage earlier by a confidential informant. A subsequent search of the defendant’s garage produced over two ounces of methamphetamine, along with an assortment of related paraphernalia.

Pigage’s trial counsel presented an entrapment defense, claiming Pigage was only interested in the undercover officer’s companionship.

The defendant, who had twice previously missed court and had bail revoked, only to be later reinstated, did not appear on the second day of trial. Orange Superior Court Judge Stuart Waldrip then held a hearing at which it was disclosed that Pigage had contacted the court to say he was near the courthouse but was afraid to appear because he was afraid he might be placed in custody.

The defendant’s girlfriend testified that he had received numerous threats and harassing phone calls, and that he thought he might be arrested because of certain statements he made to the police about his alleged accomplice in the drug deal. Pigage’s lawyer confirmed that the defendant had reported threats on his life and said he had been told by a doctor that he had “stress syndrome.”

Waldrip denied the defense request for a mistrial or a one-day continuance and gave the defendant an hour to appear. When he failed to do so, the judge continued with the trial in his absence, pursuant to Penal Code Sec. 1043, and instructed the jury to disregard the defendant’s absence.

In a discussion outside the jury’s presence, Flory told the judge he intended to argue that the defendant’s absence constituted “flight” and thus indicated a consciousness of guilt, and cited cases that he said supported his position.

Waldrip, however, noted that the cited cases allowed the instruction but did not say it was mandatory. The judge said he was going to take “the safe course” and not allow the argument or instruct the jury on flight.

Flory responded that he was going to make the argument anyway.

“I’m going to argue it because it’s not error to argue it,” he said, prompting the judge to explain that under the particular circumstances of the case “I would fear that it would be improper.”

Attorney Warned

After Flory said he still intended to argue the issue because “the Court of Appeal says I can argue” it, the judge warned him that it would be “really improper” to make an argument that he had been ordered not to make, especially since the prosecution had a “compelling” case and Flory was in danger of provoking a mistrial.

Flory ultimately did make a reference to the defendant’s absence, drawing a prompt admonition and cautionary jury instruction, but no mistrial.

Jurors convicted Pigage of possession of ephedrine and pseudoephedrine with intent to manufacture methamphetamine and of possession of methamphetamine, and found that he had been convicted of a prior felony for which he had served a prison term. 

Moore, writing for the Court of Appeal, expressed concern not only that Flory had willfully violated a court order, but that Deputy Attorney General Douglas Danzig, in arguing the case on appeal, tried to justify the prosecutor’s actions on the ground that his legal position was “right.”

He wasn’t, Moore said, suggesting in a footnote that since it was not clear why Pigage was absent, the trial judge was within his discretion in barring the argument. In any event, Moore declared, it is the responsibility of a lawyer to obey court rulings “whether right or wrong.”

Flory, she declared, “actively undermined the cause of legal professionalism and respect for our judicial system,” and could have been held in contempt. The trial judge, on the other hand, made “an unparalleled display of good judicial temperament” and allowed the case to proceed to a verdict.

The prosecutor’s “unprofessional and improper conduct,” however, does not require a reversal of the conviction, Moore said. She noted that the one reference to the defendant’s absence that Flory made in the jury’s presence, “although preceded by an inexcusable display of contempt,” was cured by Waldrip’s admonition.

Flory told the MetNews he had not read the opinion and could not comment.

The case is People v. Pigage, 03 S.O.S. 5583.


Copyright 2003, Metropolitan News Company