Donations to Dow campaign raise ethical questions

Campaign ethics experts say DA candidate shouldn’t have accepted $5,000 from defense attorney while prosecuting one of his clients, but the action wasn’t illegal

ppemberton@thetribunenews.comApril 25, 2014 

Dan Dow

JOE JOHNSTON

While prosecuting a statutory rape case, district attorney candidate Dan Dow accepted $5,000 in campaign donations from the attorney representing the defendant, according to court and campaign contribution records.

A few days before a final plea deal was reached, Dow asked to be recused from the case saying he wanted to avoid the appearance of impropriety. He later received another $5,000 from the same defense attorney.

The state attorney general’s office concluded that Dow, a deputy district attorney, did nothing illegal in accepting the contributions. Legal ethicists, however, say the donations can suggest a conflict of interest in the eyes of the public.

“The appearance is very bad,” said Geoffrey Hazard, a professor emeritus at Hastings College of the Law in San Francisco, who has written a casebook on professional ethics. “I think most people in a position that that guy was in would have been more careful.”

While another ethicist said Dow should return the money, Dow said he has no reason to since the donation had no impact on the case.

“There’s absolutely nothing unethical,” said Dow, who previously chastised his opponent, Assistant District Attorney Tim Covello, for taking money from a man Dow once prosecuted in a DUI case.

Dow has nearly outraised Covello 2-1 in a heated race to succeed Gerry Shea, who decided not to run for re-election. His largest contributor, Arroyo Grande attorney James Murphy, donated $10,000 to Dow, much of it while defending a client Dow was prosecuting.

The case

A year ago, Murphy took on the case of James Bing, a Nipomo resident who had been accused of having sex with intoxicated 14- and 15-year-old girls he supplied with liquor when he was 22 and 23, according to a probation report.

Dow was the prosecutor on the case from the beginning.

Bing was originally charged with five counts — two felonies and three misdemeanors — which could have led to several years in prison plus mandatory registration as a sex offender.

According to court and campaign records obtained by The Tribune, Dow — who sought donations before officially announcing his candidacy — received his first $2,500 contribution from Murphy on Nov. 4.

On Nov. 7, he added lesser charges to the case, setting the stage for a possible plea deal.

Dow announced Nov. 18 that he was running for district attorney.

On Dec. 10, Dow received another $2,500 donation from Murphy.

Early in the year — Shea recalls that it was in January — Dow asked to be removed from actively prosecuting all cases and Shea denied the request, said Chief Deputy District Attorney Jerret Gran.

On Jan. 7, Dow was in court when a date was set for the following week to enter a plea in the Bing case.

A few days later, Dow asked to be removed from that case, said Gran, who is Dow's supervisor.

“I withdrew from the case because I thought he (Murphy) had become a significant enough contributor to my campaign where I just felt, ‘You know what, I don’t think I should handle this case any longer. I think it should go to somebody else so there’s absolutely no appearance of impropriety,’” Dow said.

When a plea was entered on Jan. 14, a different deputy district attorney appeared as prosecutor, according to court records.

Dow received a third $2,500 donation from Murphy on Jan. 22.

After Dow was removed from the case, Gran said he reviewed with two other deputies and Shea the plea that Dow had set in motion, and the decision was made to drop the most serious charges.

They then asked the county counsel to review the process before another deputy formally agreed to the plea bargain in court.

On Feb. 18, Bing was sentenced to a year in County Jail for one felony and two misdemeanors. He was not required to register as a sex offender.

On Feb. 19, Dow accepted a fourth $2,500 from Murphy.

Donations legal

Legally, Dow can accept those donations as long as the money doesn’t impact the case’s final outcome, said Hazard, the legal ethicist at Hastings College of the Law.

Dow said the donation had no impact on the plea deal, proven by the fact that others ultimately made the plea.

“Mr. Gran believed that after looking at all the evidence that whatever resolution they were going to decide to do was a good and proper one,” Dow said. “At the end of the day, I had absolutely nothing to do with taking the plea.”

While Shea agreed to recuse Dow after Gran told him Murphy had contributed to Dow’s campaign, he didn’t take further action until about two weeks ago, Shea said.

That was after campaign finance disclosure forms filed in March revealed that Dow had received multiple donations from Murphy, totaling $10,000.

“When the information was brought to my attention, I sought the advice of our county’s Office of County Counsel,” he said. “As a result, I forwarded the matter to the Attorney General’s Office for their objective review.”

Shea said he made no judgment on the matter but went to the attorney general because he has a conflict, having endorsed Covello.

“We received the matter and are taking no action,” David Beltran, a spokesperson for the Attorney General’s Office, said Friday.

Still, Covello said Dow should never have taken the money.

“This is a matter of public trust,” Covello said. “These are issues that are important to the community, and the community has a right to know what kind of person they may elect as their district attorney and what kind of judgment that person has.”

Complicated questions

Although Dow’s acceptance of Murphy’s money could lend the appearance of impropriety, Hazard said, races for district attorney are generally lower profile than legislative races, and it makes sense for candidates to seek donations from those who best know their work.

“You’re almost inevitably going to have to look to other members of the legal profession,” he said. “Judges running for elected office often run into the same kind of problem, particularly if they face some kind of opposition.”

Since the Murphy donations occurred while the Bing case was active, said Kathay Feng, an attorney and executive director for California Common Cause, a nonadvocacy organization that specializes in elections, Dow should return the money so it doesn’t appear to be a conflict.

“It would probably behoove him to return the money so that there is not any appearance of corruption,” Feng said.

Dow said he won’t.

“That’s only if it looks like there is an impact,” he said. “There is none because I withdrew from the case. If I had handled the disposition of the case, I’d give the money back.”

Bing, who did not come from a prominent family, did not receive special treatment, Murphy said.

“He’s a great kid with bad judgment,” he said. “But I’ve known a lot of 22-year-old boys that lose their judgment around younger girls. He’s not a predator. He’s a kid that made some mistakes and is immature, and I fought for him well over a year to get a fair resolution.”

Murphy said he donated to Dow because he had seen Dow’s work.

“I have the utmost respect for him as a professional,” said Murphy, who also donated to Ian Parkinson when he ran for sheriff. “He’s a tough prosecutor, but he’s fair, and I admire him greatly. So when he came to me and said, ‘Would you be willing to support me?’ I was happy to do so.”

Email accusation

In March, Dow accused Covello of having an improper donation of $5,000. In an email from Dow — which Covello mentioned during their first public debate — Dow told Covello that one of Covello’s big donors was a man Dow had prosecuted for misdemeanor DUI roughly six years ago.

“I am sure that you care enough about justice — and your own reputation — and can appreciate how even the appearance of impropriety can tarnish one’s reputation,” Dow wrote, suggesting Covello return the money. “I would rather not have this become an issue in the campaign involving the press.”

Covello chastised Dow on Thursday for criticizing his donor when Dow had taken money from Murphy.

“It’s more than hypocritical,” Covello said.

Dow said Covello’s donor was different because he was a criminal defendant while Dow’s donor was a respected attorney.

“If I were to take money from the defendants that he tried for killing Dystiny Myers, whether that’s their right to give money or not — it might be true — I would feel their motive for giving it to me would be to get even with the guy that sent them to prison,” Dow said. “I think that is not a good motive to contribute, and I don’t want to play that.”

Yet, Covello said, he had no involvement with the donor Dow questioned — and had no idea who the contributor was — while Dow was actively negotiating a plea with his donor.

“You can’t impact a case while you are receiving contributions from somebody,” he said, referring to the change of charges.

While election laws permit donations in such cases, Feng said, the court process should never be tainted by money. “You do not want these decisions based on self-interest,” she said.

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