Prosecutor, county attorney differ in coroner accounts

By From page A1 | March 15, 2014

VALLEJO — A top attorney for Solano County took the witness stand Friday and described a very different version of a brief 2013 conversation than the version testified to Wednesday by one of District Attorney Donald A. du Bain’s chief deputy prosecutors, Jeff Kauffman.

The contradictory accounts cast blame on each other for who is responsible for the current coroner controversy that affects dozens of homicide cases. Prosecutors blame county lawyers and county lawyers say du Bain and Kauffman dropped the ball.

A county attorney, Azniv “Azi” Darbinian, testified that du Bain called her Oct. 10, 2013, and wanted to meet with her to discuss a completed investigation into the competency of Dr. Susan Hogan, the doctor who since 2008 performed almost all autopsies for the Solano County Sheriff-Coroner’s Office.

Du Bain went to Darbinian’s office, where they set up a telephone conference call with Kauffman. The subject of the conversation was their effort to figure what details of the investigation would need to be shared with defense attorneys in upcoming homicide cases in order to comply with legal requirements commonly referred to as Brady law. The meeting came after Darbinian said she would be unable to attend a larger meeting covering the same subject scheduled for later in the day.

Kauffman testified Wednesday about the conversation. His description of the circumstances of the three-person conversation was the same as Darbinian’s. Their accounts part company when they testified about what was said.

Kauffman testified that du Bain asked Darbinian if there were any Brady issues they would need to share with defense lawyers. Darbinian told du Bain “No,” then du Bain asked her, “Are you sure?” and she said “Yes.” Du Bain then canceled the larger meeting, Kauffman testified.

Darbinian disputes Kauffman’s account.

“I never told them there were no Brady issues to disclose,” Darbinian testified.

Darbinian testified that du Bain said he was going to cancel the larger meeting and then told Kauffman, “I will let you and Azi work out the Brady issues.” Darbinian testified she received an email from du Bain later in the day confirming that she and Kauffman would work it out.

Darbinian testified that the next time she heard from Kauffman or du Bain on the subject was more than two months later when Kauffman sent her an email Jan. 14 to follow-up on the Brady issue after Hogan had sent a prosecutor an email saying she had been fired.

The Sheriff’s Office had previously portrayed Hogan’s departure as a retirement.

In another email, Kauffman asked whether Hogan’s contract had just not been renewed, which Darbinian responded to by saying Hogan had been a county employee.

Darbinian provided copies of the emails for the court.

The Daily Republic asked du Bain on Friday to share his recollection of the conference call.

“I would welcome the opportunity to comment on my recollection of events, but my ethical duties prevent me from commenting on evidence during the course of a court hearing that has not yet been concluded,” du Bain said in an email. “My emails related to those events would also constitute evidence and, therefore, may only be released during the course of the hearing itself while it is still in progress.”

The investigation into the competency of Hogan was prompted by complaints from du Bain and some of his top prosecutors. Du Bain, his three chief deputies, all the top prosecutors in their Vallejo office and several prosecutors in the Fairfield office knew for months about the Hogan situation and the months-long secret investigation. None of them told any defense attorneys what was going on.

Between the October teleconference and the January emails, a probable cause hearing took place for Michael Daniels, who is accused of suffocating his girlfriend in a Vallejo motel room.

Daniels’ defense team claims if they had known about Hogan being fired and the secret investigation, a judge would never have ordered Daniels to stand trial because the evidence points to the possibility the girlfriend had passed out after drinking heavily and before suffocating on her own vomit. Defense attorneys accuse prosecutors of hiding the details about Hogan, saying it amounts to outrageous conduct that should result in murder charges being thrown out.

Judge Daniel Healy last month ordered more than 1,000 pages of county documents about the investigation and termination of Hogan be made available to defense attorneys and prosecutors. Witness testimony about those documents and Hogan’s termination got underway Tuesday after Healy rejected a prosecution effort to have him removed from the case.

Before Darbinian testified Friday, prosecutors said they had renewed their effort to remove Healy by appealing his ruling with the Court of Appeal. Friday afternoon, the Court of Appeal ordered the hearing to be put on hold, asking defense attorneys to respond to the prosecution effort by Thursday.

Reach Jess Sullivan at 427-6919 or [email protected] Follow him on Twitter at www.twitter.com/jsullivandr.

Emails track lawyers’ exchange

On Oct. 10, 2013, District Attorney Donald A. du Bain sent Assistant County Counsel Azniv Darbinian an email which he copied to Undersheriff Gary Elliott Jr. and to his three chief deputies, Jeff Kauffman, Terry Ray and John Dougherty:

  • “In consulting with Azi and Jeff Kauffman, Chair of our Brady Committee, I have decided to cancel my request for a meeting. Instead, Jeff and Azi will work together to ensure that both our offices are complying with our Brady obligations with respect to Dr. Hogan. I will ask Monica to cancel the meeting via Outlook.”

On Jan. 14, 2014, Kauffman sent an email to Darbinian:

  • “Can you confirm for me (at least prior to the January 7, 2014 email from Dr. Hogan to Karen Jensen) that there was no Brady disclosure that needed to be made as a result of Dr. Hogan’s separation from the Sheriff’s Department?”

On Jan. 14, 2014, Darbinian responded to Kauffman:

  • “Jeff: We were evaluating the issue with regard to Dr. Hogan but had not yet made a determination. Please let me know if you would like to discuss further.”

On Jan. 14, 2014, Kauffman responded to Darbinian:

  • “Thanks for that. One more thing: If Dr. Hogan said that her contract was not renewed with the SO, would that be accurate?”

Jess Sullivan

Jess has covered the criminal justice system in Solano County for several years. He was an embedded reporter in Iraq in 2003.

Discussion | 24 comments

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  • RobertMarch 15, 2014 - 4:06 am

    Whenever a person tries to do the right thing, those whom stand to be exposed for their dishonest and public deception resort to the coward's way, "Let's get rid of Healy". Wow! you guys at the DA and Sheriff's Office should be ashamed of yourselves! You were entrusted to protect the rights of people that YOU WORK FOR, get it????????? The residents of this county are still your boss.

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  • LeonardMarch 15, 2014 - 5:39 am

    Let's not forget that the actions depicted in recent news articles should always be kept in perspective as the actions of a few and not all. There are many honest and hardworking people at the Sheriff's Office. It's important that their handwork and commitment to the community not be overlooked as a result of the actions of some "Clowns," who bring embarrassment and shame to their profession.

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  • The MisterMarch 15, 2014 - 7:52 am

    You are right there, Leonard. I'll bet most of those honest and hardworking people at the SO would appreciate a new Sheriff who was also honest and hardworking. I'm voting for Tom Toler to give them that opportunity.

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  • oboogie2March 16, 2014 - 12:51 pm

    But if those honest hardworking members don't step up and call out the "bad apples" then they are every bit as much a part of the problem.

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  • DeniseMarch 15, 2014 - 4:21 am

    It wasn't me....It was them! The Warriors did it, oh no it was the one legged man with three arms. I love it! When a ship starts to sink(in this case a Fleet) the first ones to run are the "RATS"

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  • LeonardMarch 15, 2014 - 4:27 am

    Being truthful and doing what is right is not always easy, but it is NEVER complicated!

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  • Robin KeeneyMarch 15, 2014 - 7:43 am

    Leonard, that is profound. What a perfect time for an election!

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  • TaylorMarch 15, 2014 - 9:11 am

    Why is du Bain not being made to testify in this? He was apart of the "three person conversation" and should be made to testify as to his recollection of events. even if he takes the cowards way out by pleading the 5th that would speak volumes about him and his character. That's not a trait that I want in a leader. Sad to say that there probably are good people that work in these county offices. however, since the higher ups are crooks themselves I can imagine how hard it would be as an honest employee to do what's right when you are up against this type of leadership, or lack there of.

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  • Mike (Former SO Deputy)March 18, 2014 - 4:44 pm

    Leonard, doing the right thing and standing up for yourself at the SO, got me, slammed by Sgt's, Lt.'s, Capt.'s and pissed off the sheriff. I was injured and I am still waiting to get treatment after 8 knee surgeries. I was arrested on sham charges by a dirty investigator, who was found in a similar case to have lied, withheld evidence and threatened witness but is still allowed to work and investigate cases at the SO against other employees, he has found to have lied and withheld evidence in my case along with a SO Sgt who has been allowed to lie at my prelim, and the dda knew he did and did not say a thing. I have court transcripts, da investigators reports, past court documents that show he was the reason the case was dismissed. The county and the SO failed to report this brady issue to the county where my case is going on. The dda in my case is just saying she has problems with the witness from Solano SO and evidence but is still trying to go to trial and make an example of me. This same investigator is also the campaign manger for the sheriff as he runs for election. What an honest man that is handling the sheriffs campaign? Why has there been no mention of the FBI/AFT investigation into Solano SO on the missing class III firearms? Yes I still have ears at the SO that believe I was screwed. Solano County even held up my medical retirement for 12 months, the longest they can even after there doctor said I could not return to work in my present condition. I lost my house, had to file for bankruptcy, they treatment me well. I am still waiting for medical treatment so that I can hopefully be able to return to some sort of work.

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  • LeonardMarch 18, 2014 - 5:06 pm

    Mike, you know me and what I am all about. I fought long and hard and also met a similar fate. But to this day, I don't once regret doing the right thing and I would do it all over again!

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  • tiredofthisDAMarch 15, 2014 - 8:34 am

    Why is it that everyone in the DA's office is telling their version of what duBain said. Why not just put duBain on and let him explain what he said. It appears to me that if the meetings were secret that he never planned on sharing any of this stuff. duBain keeps passing the buck by hiding behind, "my ethical obligation". It's his ethics that are being called into question. When Mike Mullins was DA of Sonoma County, he was involved in a coroner contraversy involving Dr. Tom Gil. Then, Gil comes to Solano and when Mullins lost his bid for reelection due to the contraversy he too was hired by Solano County as a DA. When Gil's competency was called into question, again mums the word and Mullins was well aware of the Gil issues. When Gil was exposed they hired Hogan to review Gils work. Do all of those autopsys she reviewed need to be reopened? Why did they hire Hogan, was it because she too would do as they asked? Through the testimony of the current proceedings its quite obvious she concluded some deaths were homicides even though she didn't eel they were and she was "bullied" by the DA into making her findings. All spells corruption and duBain refuses to talk about it and hasn't publicly denied it. HE MUST GO!!! And now lets get rid of the judge for exposing us and not being a team player. Classy Don, real classy. Your a toad

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  • DeniseMarch 15, 2014 - 9:00 am

    Don't think for a second that the Sheriff is not as culpable in all this. The more I read and the more I hear about these guys, the more and more I am reminded of an Austin Powers movie starring," Dr. Evil and Mini Me." You decide which is which......

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  • DeniseMarch 15, 2014 - 9:20 am

    Hey Leonard, sorry for all that these people put you through. Unfortunately sometimes we just have to see things for ourselves. "Semper Fidelis"

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  • CD BrooksMarch 15, 2014 - 9:25 am

    Denise, wow Austin Powers? Seriously? So that explains where the majority of support will come from if your candidate should appear on the ballot? Between you and those two Suisun City activist's support this issue is closed in my book! ;) Have a really great day everybody!

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  • robertMarch 15, 2014 - 10:39 am

    This is supposed to be an informative forum, I don't get why some people are taking this so personally. Stick to issues people, and by the way I also like Austin Powers.

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  • Rich GiddensMarch 15, 2014 - 10:41 am

    I hope you're not referring to me CD. I'm just an ordinary citizen.

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  • George Guynn, JrMarch 15, 2014 - 12:02 pm

    Robert is correct that this blog should be about the issues. I am sorry that doesn't seem to work for you CD.

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  • CD BrooksMarch 15, 2014 - 12:35 pm

    GGJ, whose issues, yours or theirs? I am simply pointing out the obvious, and that is a glaring disadvantage for Mr. Toler. That's my opinion and that is how it will go.

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  • RobertMarch 15, 2014 - 1:26 pm


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  • reneeMarch 15, 2014 - 12:16 pm

    I agree with taylor, the complications atr coming from trying to cover some behinds, the truth is always simple

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  • It's even worseMarch 15, 2014 - 10:30 pm

    This Brady thing is even worse than what is being reported. There have been officers placed on the Brady List for no reason at all, meaning those cases were not prosecuted. There have been officers who belong on the Brady List who haven't been put on the list, meaning their cases were prosecuted without scrutiny. "Gold Standard"?

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  • RobertMarch 16, 2014 - 4:23 am

    It"s even worse, you couldn't be more accurate in your assessment. I clearly recall a newspaper article some time ago which reference the opinion of an Administrative Law Judge. This Judge in a nutshell stated, that a certain Deputy Sgt. was being deceptive on the stand(I think that this is the same one who harassed Toler). Cutting through the chase, the Judge basically said, that the Sgt. was a liar! But of course, after some discussion over the subject matter between Dubain and the recently retired Sheriff they both concluded that this Sgt. met the "Gold Star" standard with flying colors.

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  • RobertMarch 16, 2014 - 6:55 am

    Sorry about that, I didn't have my reading glasses on. It says, "Gold Plated" standard. Now, that makes since.

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  • RichBIxMarch 17, 2014 - 1:31 pm

    Somebody's lying. Unfortunately one of those possibilities is from the county legal department. Lets see how this plays out. Seems the County Council has email to support her claim.

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