Metropolitan News-Enterprise


Monday, March 21, 2016


Page 1


Court of Appeal Finds Slayer Didn’t Prevail in PRA Action

Court Says Surrender of Document Was Caused by New Case Law, Not Writ Action


By a MetNews Staff Writer




David Scott Harrison, a convicted slayer now serving time in San Quentin, Friday was relieved of a $450 cost award in favor of San Diego District Attorney Bonnie Dumanis, in a case raising the issue of whether a person who receives a document sought through a Public Records Act (“PRA”) request, after filing suit, may proceed with the action in order to garner costs.

Div. One of the Fourth District Court of Appeal, in an opinion by Justice Alex C. McDonald, answered that question in the negative, under the facts, reasoning that the document would have been produced, even if Harrison had not brought an action, under interceding case law.

The decision, which was not certified for publication, affirms San Diego Superior Court Judge Joel M. Pressman’s judgment in favor of Dumanis, but reverses an award of costs to her.

The opinion came 16 years and two days after Harrison was convicted of the first degree murder of his former wife.

In the PRA action, Harrison sought an unspecified document which the court had ordered sealed. Dumanis declined to provide it on the ground that the document was part of her office’s investigation file, and Harrison, acting in pro per, filed a writ action.

Subsequently, the Fourth District’s Div. One filed its opinion in Weaver v. Superior Court (2014) 224 Cal.App.4th 746, saying:

“[T]he District Attorney acknowledged that the documents Weaver seeks are the District Attorney’s file copies of “court documents” whose originals were filed in the superior court….The issue we decide is whether the District Attorney’s copies of judicial documents—which must be made available to the public upon request at the superior court—are entitled to exemption from disclosure as investigatory documents under the CPRA….We conclude the documents sought are not exempt from disclosure.”

Bowing to that decision, Dumanis provided the sole document responsive to the request. Harrison declined to dismiss his action, claiming entitlement to costs as the prevailing party.

‘Post Hoc’ Reasoning

Rejecting his contention, McDonald said:

“…Harrison’s argument that he was necessarily the prevailing party fails because it is based on the logical fallacy (expressed as ‘post hoc ergo propter hoc’ [after the fact, therefore because of the fact]) that merely because the release of the letter followed the filing of his petition, the release was necessarily caused by the filing of his petition. The courts have recognized the fallacy of this argument….

“Here, there is substantial evidence to support the implied finding of the trial court that the District Attorney did provide the letter to Harrison, albeit after his petition was filed, but that the delay was attributable to the fact the letter had been ordered sealed by a court rather than because the District Attorney was refusing to produce it or was only producing it because of Harrison’s petition. Because substantial evidence exists to support the implied finding that his petition did not cause the District Attorney to produce the letter, we reject Harrison’s claim the trial court was required to find he was the prevailing party.”

Dumanis’s Contention

With respect to the award of costs to Dumanis, McDonald noted that in a PRA action, such an award may be made to a governmental agency only if the requester acted frivolously. He rejected the district attorney’s argument that costs should be allowed because the action, though non-frivolous at the outset, became frivolous once the document was provided, on Dec. 22, 2014, and Harrison refused to drop his action.

McDonald wrote:

“We are unpersuaded by the District Attorney’s argument because the only costs it sought, and were awarded by the court, was the filing fee incurred to oppose the petition. That cost was incurred in October 2014, and hence was incurred at the time when, according to the District Attorney’s own concession, the action was not frivolous. Even assuming Harrison’s petition at some later time changed from a potentially meritorious action and became frivolous, the District Attorney cites no authority suggesting it was entitled under Government Code section 6259, subdivision (d), to recover the costs it incurred during the period when the action was meritorious, and analogous authority suggests such sanctions should be limited to the costs incurred during the period in which the action was frivolous.”

The case is Harrison v. San Diego County, D068603.

Harrison’s murder trial attracted considerable attention, with the slaying termed a “near-perfect” crime.

Then-Deputy District Attorney James Burns (now in private practice) was quoted as saying in his closing argument that Harrison “made aspirations to the perfect crime, but he made mistakes,” elaborating:

“He talked too much afterwards.”

Harrison says, on his website:

“In 1990 I was prosecuted for the 1988 murder of my ex-wife, Ann Jenkins, a case of multiple tragedies and systemic government corruption. It is a case of deliberate government suppression of fundamental evidence that would establish my innocence; I am 100% factually and morally innocent of the murder, which is readily observed by all who look into the case.”


Copyright 2016, Metropolitan News Company