DA Not Recused

Mendocino County Superior Court Judge Keith Faulder denied a defense bid Friday to recuse District Attorney David Eyster from the criminal prosecution of suspended Auditor Chamise Cubbison, saying evidence of the DA’s bias is too thin at this point.

Faulder, however, left the door opened to a renewed challenge after Cubbison’s defense attorney Chris Andrian said investigations are continuing into the DA’s role in the high-profile case.

Andrian specifically told Faulder that he expects Eyster to have to testify under oath “within the next two months” as a separate civil lawsuit challenging the county Board of Supervisors’ decision to suspend Cubbison without notice moves ahead. The board acted almost immediately after the DA filed a single felony count of misappropriation of public funds on Oct. 13 without giving the elected official an opportunity to offer her version of events publicly or to enter a plea to the criminal complaint.

“I could be back in here in the middle of the criminal prosecution seeking his recusal based on what we expect will be new, more defined evidence,” said Andrian.

Faulder said he understood that possibility “but I don’t have enough evidence in front of me today.”

Faulder then set January 18 for an entry of plea by Cubbison to the criminal charge she faces, and the setting of a date for a preliminary hearing when Eyster will have to publicly present any evidence he has to support the felony allegation.

Andrian has been seeking Eyster’s recusal from the Cubbison criminal case because of his past public conflicts with the Auditor over his spending of public asset forfeiture funds and travel reimbursement claims. His “vendetta” against her mar her chances for a fair prosecution, claims Andrian.

Before ruling from the bench, Faulder cited a number of past recusal cases he had reviewed but he said they offer specific examples of bias and not just conflicts in general. Eyster’s denouncing Cubbison in public and on video before a criminal investigation was launched is not enough to show she cannot receive a fair trial, he said.

“The law in this regard is narrowly defined,” said Faulder. 

Faulder said he takes the Cubbison concerns “very seriously,” but at the present time he concluded he lacked specific evidence to remove Eyster from overseeing prosecution of her.

Deputy state Attorney General Sharon Loughner made a video appearance Friday from her San Francisco office to argue against Eyster’s recusal. Appearing with her was a new state deputy prosecutor, Caitlin Duprey, a former deputy district attorney in Eyster’s office. Duprey later said she was there to “observe” a recusal hearing in her role as a new deputy AG.

Loughner verbally repeated state arguments in court filings surrounding a 1980 amendment to state Penal Code 1424. It declares a recusal of a District Attorney “shall not be granted unless it is shown by the evidence that a conflict of interest exists such as would render it unlikely that the defendant would receive a fair trial.”

Loughner said the law is specific, and that “appearances of conflict” are not enough to move forward with a prosecutor’s recusal. She said the state AG’s Office adheres to the intent of the revised state code, which was amended 43 years ago because of a “substantial increase in the number of unnecessary prosecutorial recusals under the ‘appearance of conflict’ standard” established by early court rulings.

It is the second time the state AG’s Office has supported Eyster when questions about his possible biases have been raised in criminal prosecutions, this time with a fellow elected official he has publicly quarreled with and before that a former local police chief accused of sexual assault who was never formally charged by the DA after the explosive case languished in his office.

An AG spokeswoman last week said the state Justice Department was aware of the local uproar over Eyster’s attempt to prosecute a duly elected County Auditor, and past allegations of conflicts of interests on the DA’s part in relation to a string of local police misconduct cases that provoked public outcry in 2022.

Still, that is not enough, according to Deputy AG Loughner. 

“Recusals are very rare because the law is very narrow, and requires documented evidence,” said Loughner.

About 25-30 Cubbison supporters showed up Friday and filled Faulder’s courtroom in support of the embattled Auditor.

Eyster acted against Cubbison after an investigation was instigated by the County Executive Office and conducted by the Sheriff’s Department and then his own investigators. A year passed before, on Oct. 13, the DA filed a single felony charge of misappropriation of public funds against Cubbison, and the county’s former Payroll Manager Paula June Kennedy. Before filing the charges Eyster apparently told Cubbison and her attorney he would only file a misdemeanor if she resigned, and stepped down from her elected position. Cubbison, declaring she has done nothing wrong, said she chose to fight the criminal charges.

At issue is about $68,000 in extra pay paid to Kennedy from October 2019 to August 2022. Eyster accused Cubbison of engaging in a “pay scheme” on behalf of Kennedy by using an obscure payroll code to allow payments that had not been officially authorized. No evidence has been presented that Cubbison personally benefited from the extra pay.

Cubbison contends that the disputed pay agreement was reached between now retired Auditor Lloyd Weer and Kennedy. The payments were largely made when Cubbion was only Weer’s assistant, and not yet elected to succeed him and take control of the office.

Between the time when Cubbison was Weer’s assistant and when she was elected as his successor, the Board of Supervisors, with the DA’s encouragement, forced the consolidation of the county’s formerly independent financial offices: Auditor/Controller and Treasurer/Tax Collector. The board action was taken despite objections from seasoned county finance employees and civic groups who feared loss of independent oversight if a new Department of Finance more associated with the board and the County Executive Office was put in place. 

The formal creation of a new county finance department appears on hold at the board level until a required election can be held for voters to decide, but critics contend that in fact it is already in place.

“The acting auditor now is a board appointee from the CEO’s Office who could serve in that role for the next three years until Cubbison’s term expires,” said Carrie Shattuck, a candidate for the county board in the March primary.

“Where is the independent oversight we had before the DA and board acted?” Shattuck asked.

At the core of the Cubbison/DA case are her challenges to Eyster’s spending, and his role in getting a fellow elected official suspended from office based on his move to criminally prosecute her. Eyster has quarreled with three different county auditors over his spending practices since he was elected in 2011.

(Mike Geniella is a veteran North Coast journalist and former DA spokesman who worked part-time under contract until he terminated the arrangement in November 2021.)