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San Luis Obispo County District Attorney Dan Dow personally took over a Cambria sexual assault case after the alleged victim threatened to “publicize” the office’s plan to drop the case two weeks before Dow faced re-election, court records allege.
The allegations filed by the defendant’s attorney on Monday only represent one side of the story. Dow has not filed a response in court and was not available for comment Tuesday, according to a spokesman for the office.
Three weeks after the June 4 primary election in which Dow won a second term as the county’s chief prosecutor, he surprised local attorneys and courthouse staff when he appeared in court to try 72-year-old Herbert Connor on charges of assault with intent to commit rape, sexual battery, and inflicting corporal injury.
Connor, of Cambria, is accused of groping and assaulting a 67-year-old woman from Cambria with whom he had an on-and-off friendship in August 2017, after she allegedly spurned his advances.
It is rare in San Luis Obispo County that a sitting district attorney, an administrator whose department includes more than 30 deputy prosecutors, actually prosecutes a case in court; the last DA to do so was Barry LaBarbera in 1996, according to Tribune archives.
The Connor case was first filed in May 2017 and had at least two deputy prosecutors assigned to it before Dow took over, according to court records. The most recent deputy assigned to the case, Christopher White, told Ilan Funke-Bilu, Connor’s attorney, in April that he would seek dismissal because of “concerns” with the prosecution’s case, according to court documents.
In June, Dow told The Tribune he took over the case because “this is the work I signed up to be a lawyer for.”
“This is what I love to do, and being the administrator of an office and not having a chance to do that, you get antsy and you want to get in the game,” Dow said at the time.
But Funke-Bilu says Dow was swayed by political concerns.
Funke-Bilu alleges that Dow agreed to overrule his deputies and take over the case to avoid bad publicity in the weeks before a hotly contested primary election underscored by allegations that Dow neglected his responsibilities to investigate a series of inmate deaths at the County Jail.
In the motion filed by Funke-Bilu on Monday, the attorney seeks to have Dow and the SLO County DA’s Office recused from prosecuting the case, which, if successful, could result in the case being handled by state prosecutors.
Attached in the motion are two letters sent to Dow on May 2 and May 25, respectively, by Daniel O’Neill, an attorney who identified himself as representing the alleged victim in her potential lawsuit against Connor.
On May 2, O’Neill wrote of his concern that the DA’s Office would be dismissing the charges against Connor.
“Mr. White expressed his misgivings about the case and ultimately stated to (the alleged victim) that he ‘has an ethical prosecutorial duty not to prosecute a case unless he is 100 percent certain he can win at trial,’” O’Neill wrote. According to the letter, the alleged victim’s appeal of White’s decision not to continue the case led to a meeting with Assistant District Attorney Eric Dobroth, who agreed to personally review the case.
In his May 25 letter to Dow, O’Neill wrote that, after Dobroth reviewed the case, the office still intended to dismiss the charges.
“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.
He added: “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. Court records show that White made one more appearance in the case at a June 7 hearing before Dow officially took over and represented the office at a June 26 preliminary hearing.
In his motion to the judge, Funke-Bilu wrote that three other prosecutors as well as Dobroth had previously reviewed the case and that the facts have remained basically the same since it was filed last year.
Funke-Bilu argued the two 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.”
“(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.”
Funke-Bilu — who also ran in the primary election in one of two Superior Court judge races — declined to comment for this article.
Though Dow has not yet responded to the allegations, he filed a trial brief Monday seeking to bar any evidence of communications between he and O’Neill, as well as any statements made by O’Neill, from being presented to a jury, should the case go to trial.
“The (DA’s) duties under the law include broad exercise of prosecutorial discretion,” Dow wrote. “The fact of a meeting between (the alleged victim’s) civil attorney and the (DA) is not relevant for any matter that is at issue for the fact finder in this trial and should be excluded.”
Reached for comment Tuesday, O’Neill said that when he wrote the letters, he was representing the Cambria woman under California’s Marsy’s Law to ensure her rights were protected. O’Neill said he requested the meeting with Dow to bring the case to his personal attention after it languished for a year.
“(Dow) was wonderful to deal with once we got his attention,” O’Neill said. “He really recognized this was an important case.”
Asked how his client sought to “publicize the decision” should Dow allow the case to be dismissed, O’Neill said they could have taken the case to San Luis Obispo County’s civil grand jury.
O’Neill noted that he has not filed any civil litigation on behalf of his client and that he has not been officially retained.
Dow, Funke-Bilu, and a representative for the California Attorney General’s Office are expected to present arguments at a Nov. 16 hearing before Judge Jacquelyn Duffy, who will rule on Funke-Bilu’s motion to recuse Dow and the DA’s Office.
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