Dan Dow will stay on to personally try a sexual assault case against a Cambria man after a defense attorney alleged San Luis Obispo County’s top prosecutor only took the case to avoid threatened bad publicity from the alleged victim.
On Friday, Dow, several of his deputies, a prosecutor with the state Attorney General’s Office, and an attorney representing the County Counsel’s Office gathered in Superior Court Judge Barry LaBarbera’s courtroom to argue against a motion by attorney Ilan Funke-Bilu to recuse the DA’s Office.
LaBarbera ultimately rejected the motion.
Funke-Bilu is representing Herbert Connor, a 72-year-old Cambria resident accused of assaulting a 67-year-old Cambria woman last year with the intent to rape her.
Connor has pleaded not guilty to felony charges of assault with intent to commit rape and sexual battery, as well as a misdemeanor count of inflicting corporal injury. He faces up to seven years in state prison if convicted on all counts.
But following a June 26 preliminary hearing where LaBarbera found enough probable cause to uphold the charges and move the case toward trial, Funke-Bilu filed a motion to have Dow and his entire office removed from the case for alleged conflicts of interest so great that it would deprive Connor of his right to a fair trial.
At the time, Dow’s move struck many in the courthouse as odd — a sitting district attorney hadn’t personally tried a case in SLO Superior Court since 1996, when then-DA LaBarbera sent convicted killer Michael Whisenhunt to Death Row for torturing the 20-month-old daughter of a woman Whisenhunt lived with.
But Dow, who previously was assigned to rape, sexual-assault and child-molestation cases before he was first elected to DA in 2014, simply said at the time that he missed being in the courtroom and wanted to “to get in the game.” He said the Connor case was important, and that the alleged victim deserved to have her voice heard.
But according to court records, Dow took over the case after it had previously gone through at least two of his deputies, the most recent of which was prepared to dismiss the charges as recently as June 7.
Dow has declined to comment to The Tribune on his office’s internal discussions about the case.
But in his motion, Funke-Bilu said Dow became involved in the case because of political concerns ahead of the June 5 primary election, in which Dow was embroiled in a heated race against challenger Judge Mike Cummins.
Attached to Funke-Bilu’s motion were two letters sent to Dow on May 2 and May 25, respectively, by Daniel O’Neill, an attorney who represents the alleged victim in her potential civil lawsuit against Connor.
On May 2, O’Neill wrote of his concern that the DA’s Office would be dismissing the charges against Connor.
After Assistant District Attorney Eric Dobroth agreed to personally review the case, O’Neill wrote a second letter to Dow on May 25.
“I realize, with the upcoming election, your schedule leaves limited availability, but I’d request a meeting Tuesday or Wednesday of next week to discuss this matter in person,” O’Neill wrote. “If we are unable to meet before early next week, my client has informed me she intends to publicize the decision not to prosecute Mr. Connor.”
Dow reportedly met with O’Neill on June 1. Dow officially took over and represented the office at a June 26 preliminary hearing.
Funke-Bilu argued the letters “brazenly pressured and demanded” Dow to pursue the case and that Dow’s actions since meeting with O’Neill “can best be characterized as political commandeering.”
In addition, Dow penned an opinion article for local media in late September, roughly two weeks before Connor was scheduled to go to trial, in which he stressed the importance of “Start by Believing” alleged victims of sexual violence.
“(Dow’s) objective was to eliminate adverse publicity and demonstrate that he was a soldier of #MeToo,” Funke-Bilu wrote. “Such politicization has no room in our courts, not even in a political campaign.”
But Dow and the Attorney General’s Office, which could have been forced to take over the case, disagreed. In his objection, Deputy Attorney General Douglas Wilson argued in a filed opposition that the election was over by the time Dow took over the case, and that LaBarbera had held Connor to answer on June 26, 21 days after the election.
The state attorney said that Dow’s meetings with the victim’s attorneys were not improper and that Dow has the right to take over the case if he chooses.
“The district attorney properly met with the victim and independently determined that the prosecution should move forward despite a subordinate deputy district attorney having recommended otherwise,” Wilson wrote.
During the hearing Friday, Wilson argued to LaBarbera that Funke-Bilu was going on a “fishing expedition” with his motion.
“Law enforcement is hierarchical and every decision is made under the (purview) of the elected DA ... and the victim availed herself to that,” Wilson said.
He added that it was a “cynical assumption” that Dow was committing an improper or illegal act, but that the prosecution “cannot get into specifics about what the (case’s previous) deputy was thinking or the internal discussions of this office.”
Wilson argued that a prosecutor need not be impartial, just fair. He did agree, however, that the case’s previous prosecutor had intended to dismiss it.
Brian O’Neill, one of the alleged victim’s attorneys who met with Dow, testified at the hearing that Dow was “very candid” about the case.
“He didn’t make promises about anything,” O’Neill said. He added that he understood his client’s demand to “publicize” the case as taking it to the county civil grand jury or the Attorney General’s Office. He said nothing about the media.
Following the hearing Friday afternoon, Dow wrote in an email that he’s “very pleased that the court denied the defendant’s request to recuse my office from prosecuting this case.”
“Our office is firmly committed to being fair, objective, and ethical in the handling of each of our cases,” he wrote.
Reached by phone Friday, Funke-Bilu said he was disappointed in LaBarbera’s ruling, but added: “We’ll prevail at trial.”