North Coast Journal - IN THE NEWS: May 18, 2006

May 18, 2006

Forged documents and six pounds of weed

Why did District Attorney Paul Gallegos fire a top prosecutor?

REGISTER TO VOTE: Listen up, you United States citizens 18 and older who reside in Humboldt County — but not in the Pink House — and are not on parole for a felony, nor certifiably mentally incompetent: The deadline to register to vote is May 22! Join the 78,923 people in HumCo already registered by completing the easy-to-fill-out form available at the Department of Motor Vehicles, the post office, the library, at most city and county departments or online. Questions can be referred to the Humboldt County Elections Office at 445-7678 or 1-800-345-VOTE.

ST. JOE'S LAYS OFF 74: St. Joseph's Hospital announced the layoffs of 74 of its employees on Monday. Another 47 employees had their work hours reduced. An additional eight employees were laid off at Fortuna-affiliate Redwood Memorial Hospital. The layoffs were a long-expected move by the hospital, whose supplies of cash have been dwindling over the past several months.

The hospital stressed its concern for the people affected by the downsizing: "Paramount in this whole process is respect and dignity for our staff," said Bob Sampson, vice president of Human Resources. He said in addition to ongoing emotional and spiritual support, the hospital will check in with former employees "at least weekly." The hospital will also sponsor a job fair for former employees, which will be held on May 24.
Few departments were spared. Many layoffs came from clerical, admitting and support staff services. The hospital has also reduced its management/executive team by 25 percent since September. Officials said that 21 of its employees "volunteered" to be laid off.

Seven total registered nurse positions were eliminated in the layoffs, but there are approximately 20 vacant RN positions still existing. Laid-off nurses will have an opportunity to apply for these vacancies. As part of the nurses' labor contract, senior nurses have "bumping rights," which allow them to take the still-existing positions of junior nurses if they so desire. Others will be able to enter a "float pool," through which they will be deployed to different areas of the hospital as needed.

Chief Nursing Officer Linda Cook "totally understands" nurses' concerns that smaller support staff will increase their workload and potentially hinder the quality of care the hospital is able to provide for patients. She said the hospital has made great efforts to streamline positions to make the hospital run more efficiently. "We don't come with a crystal ball," she said. "But we'll be carefully monitoring our quality indicators to make sure we don't see an erosion of care."

It was unclear by press time exactly how much the hospital expects to save with these layoffs, but previous estimates have put the figure around $5 million-$7 million per year.

—Luke T. Johnson

NURSES IN BLACK: Monday was hot, too hot (even for an area as devoid of warmth and sunshine as Humboldt County) to wear all black and stand on the sidewalk in Eureka from noon to 2 p.m. But St. Joseph Hospital registered nurses — by virtue of their trade, no strangers to discomfort — did it anyway, reflecting the gloom inside the hospital to the traffic on Harrison Avenue like curbside funeral mourners. The silent vigil was staged to symbolize their opposition to the layoffs announced that sunny day, May 15, at the financially ill Catholic nonprofit, the North Coast's largest hospital, and also at its smaller affiliate hospital, Redwood Memorial in Fortuna.

Though the nurses weren't speaking out of respect for those who were laid off, some former hospital employees stopped by anyway to share their woes or say that they'd just lost their job. Drivers occasionally beeped car horns or pumped their fist and waved as they passed the scene. One motorist in an older model car slowed to a crawl, eying the protesters skeptically as he turned toward the hospital. In a press advisory notice the hospital asked the media to "respect the difficulty of the day and respect the privacy of employees as they learn about their employment status."

On Tuesday, RN Lavon Divine-Leal called the situation "really sad" and said there was a "somber mood" at St. Joe's. Divine-Leal and the California Nurses Association continue to take exception with Interim CEO Joe Mark's assertion that hospital care will not be affected "one iota" post-layoffs. "I think there are some serious issues we need to continue to evaluate regarding patient care," Divine-Leal said. Of particular concern to the CNA, she said, is the plan for reduced staffing on night shifts. CNA contract negotiations are scheduled for the end of the week. In the meantime, Divine-Leal said that nurses are "saying prayers for the entire situation, especially for our collegues in all departments who lost their jobs."

—Helen Sanderson

BAY PLAN: Unlike the pesky species known as "dwarf eelgrass," a dastardly invasive non-indigenous sea grass that's been known to crop up in Humboldt Bay on occasion (and then get yanked out by eco-minded people), the eelgrass known as Zostera marina is a vital component of the Humboldt Bay ecosystem. A native eelgrass, it grows in the muddy and fine-sand murk of the bay, is home to many species of fish and is the primary eats for a small goose known as the Pacific brant (Branta bernicla nigricans).

Eelgrass also waves through the pages of the Humboldt Bay Harbor, Recreation and Conservation District's Humboldt Bay Management Plan Draft Environmental Impact Report. That plan, which is out for public review, calls for the district to maintain the eelgrass habitat, and the fish and wildlife that use it thereby.
The plan/draft EIR also details how the district will manage other fish, wildlife and plant species associated with or in the bay, as well as cultural resources, recreation, coastal access, water use and the "built environment" around the bay, and other aspects of bay life. The district is required to form a management plan under the California Environmental Quality Act.

You can read the draft plan/EIR at the district office, in libraries or online at humboldtbay.org. The district is accepting written comments on the draft EIR either in person, or by mail, by 4 p.m. on May 30. Address them to: Jeff Robinson, Humboldt Bay Harbor, Recreation and Conservation District, 601 Startare Drive, Eureka, Calif., 95501.

— Heidi Walters

BAYKEEPER LAWSUIT: Meanwhile, a tad inland from the bay, the environmental watchdog Humboldt Baykeeper has filed the first part of a two-part lawsuit against Union Pacific Railroad Company, accusing it of failing to adequately clean up contaminants from its "Balloon Track" site near Eureka's waterfront.
The Balloon Track was home to a railroad maintenance, switching and freight yard, built in the 1880s and now defunct. It's where Rob and Cherie Arkley, of Security National, propose to build their Marina Center, a mixed-use and retail development featuring a Home Depot as the "anchor" store. The Arkleys' purchase of the site from Union Pacific is pending. In the meantime, they're pursuing zoning changes on the site which would allow building to proceed. Most of the parcels that make up the site are currently zoned for public facilities.
Some people like the Arkleys' plan. Others balk at the proposed zone change, and want the property to be completely cleaned up of old railroad gunk and soaked-in contaminants — a process that could entail extensive excavation and earth removal — and returned to some semblance of the tidal marshland it once was, or at least to open space.

Humboldt Baykeeper's Pete Nichols alleges that cleanup at the site hasn't gone far enough to prevent pollution from seeping into the groundwater and eventually into the bay. And if the zoning is changed from public to commercial, he says, less cleanup will be required: The worst stuff can be cleaned up, and the rest paved over. Whereas, if it were going to be a park, for instance, it would have to be scoured more deeply to make it safe for human contact.

Security National spokesman Brian Morrissey says the company is planning to do more clean-up at the site, and will cap it to prevent leakage into the ground. And, the company plans to take out extra insurance to cover unforeseen costs that might exceed the up to $2.5 million estimated cost of the cleanup. Morrissey said Tuesday afternoon that he didn't think the lawsuit would delay the Arkleys' plans to purchase the property. He also said that, while he hasn't seen the lawsuit, he also hasn't seen "any facts or data to suggest that Union Pacific is not in compliance with the law."

In a Sunday Times-Standard story, North Coast Regional Water Quality Control Board senior engineer Tuck Vath was quoted as saying that Union Pacific had done "everything we asked of them, so far."
Nichols disagrees, and says Baykeeper will file the second part of the lawsuit in June.

— Heidi Walters

SHAMELESS PLUGS: The Journal is pleased to announce that the California Health Endowment and the University of Southern California's Annenberg School of Journalism have named Staff Writer Helen Sanderson a 2006 Health Journalism Fellow, an honor that entitles her to state-of-the-art, all-expenses-paid training on covering health care and the medical industry. Sanderson has written on medical issues often for the Journal, most recently in our April 6 cover story, "Suits and Scrubs," which looked at St. Joseph Hospital's current financial crisis.

While we're at it, we may as well mention that the Journal recently won two awards and received two honorable mentions in the California Newspaper Publishers Association's annual "Better Newspapers Contest." The awards were for investigate reporting (Sanderson and Editor Hank Sims' "Web of Lies" series, which first appeared in last year's Sept. 1 issue) and for environmental reporting (freelancer Jim Hight's "Redwood Reckoning," Jan. 27, 2005); the honorable mentions were for feature writing (Sims' "Free the Weed," Sept. 15) and again for environmental reporting (Staff Writer Heidi Walters' "Klamath Doldrums," Aug. 25).

One more: If you haven't seen it yet, you may still have time to surf on over to the New York Times' web site and check out their Mother's Day guest Op-Ed piece, which was penned by our own star book-and-garden columnist, Amy Stewart. Stewart, whose forthcoming book (her third) is about the cut-flower industry, writes in the Times about the horrid use of toxins and questionable working conditions in Ecuadorian flower factories.

CORRECTION: The Journal's April 20 cover story, "Eric Schatz: Tree-trimmer? Monster? Gentleman? Fall guy?" misreported an allegation made by activists involved in the Freshwater treesits of 2002-2003. The allegation, which was made in an article by Jeny "Remedy" Card and author Derrick Jensen in the February 2004 issue of the Ecologist magazine, was not that Eric Schatz had tied cords around a treesitter's legs "in order to cut off [his] circulation," but that another member of Schatz's crew had done so. The Journal regrets the error.

In addition, the Journal would like to clarify certain aspects of the reporting and writing of the story. In anticipation of upcoming court proceedings that will test the truth of various claims and counterclaims, the story's aim was to contrast the portrait of Schatz promulgated by his opponents with Schatz's own version of events, and with the stories told by his videotapes of the Freshwater treesit extractions he performed as a contractor for Pacific Lumber. To provide a fair report of the contrasting claims, we felt we had to recount both the allegations made by forest activists against Schatz and Schatz's responses to those allegations. In most cases, the activists' allegations are included in pending lawsuits brought against Schatz by activists Kristi Sanchez and Scott Petersen; in others, such as the case mentioned above, they are taken from the writings and public statements of other activists or their supporters, all of which are readily available on the Internet.
In either case, the Journal did not intend for the activists' allegations to be taken as proven fact, and did not expect readers to take them as such. They were included in a story which was intended to report on both sides of an ongoing public controversy that is the subject of litigation pending in our county. We regret any confusion this may have caused.

TOP

Forged documents and six pounds of weed

Why did District Attorney Paul Gallegos fire a top prosecutor?

by HANK SIMS

According to Worth Dikeman, it's the incident that finally made him decide that District Attorney Paul Gallegos would never grow into the job, and the thing that made him decide he had to run against his boss. It's puzzled courthouse insiders for nearly two years.

Why did Gallegos fire Deputy DA Allison Jackson, a 10-year veteran prosecutor with a sterling reputation among people who deal with sexual assault and child abuse cases, on June 9, 2004, shortly after the defeat of the recall attempt against him?

Recently, Jackson, who is supporting Dikeman's campaign, approached the Journal offering her view of the reasons. Nobody who knew Jackson would have ever described her as a Gallegos supporter. She, along with every other prosecutor in the DA's office supported his opponent when he first ran for office; she, like most prosecutors refused to publicly support him during his successful fight against his recall. Yet she doesn't think Gallegos fired her because she wasn't a political supporter, exactly — she thinks he fired her to protect a local defense lawyer who was.

Some of the people privy to the events that took place during Jackson's last days as a prosecutor have said that they don't recall certain particulars — and Gallegos certainly disputes their significance — but no one has denied that the story, as largely told through court documents and e-mail correspondence Jackson retained, went like this.

On the morning of Friday, May 28, 2004, Jackson agreed to appear in a preliminary hearing in place of another prosecutor. The case involved a charge of possession of marijuana for sale, and when the original prosecutor was called to another courtroom to appear in a different case, Jackson volunteered to fill in. Perusing the case file a few minutes before court convened she realized that she recognized it.

A few weeks earlier, a Southern Humboldt man was in Eureka, with his probation officer. He admitted to the officer that he was in possession of a gun, and was told that that was a violation of his probation. Could he turn the gun over to his attorney, the man asked? The probation officer first said that would be fine, but later changed her mind and called the DA's office for an opinion. The prosecutor she reached was Jackson, who told the probation officer that she had indeed given the man incorrect information; it was not acceptable protocol for him to turn his gun over to a private attorney. The probation officer responded to Jackson's judgment by phoning the sheriff's substation in Garberville and reporting what the man on probation had told her. (The Journal knows the man's name from court documents relating to the case, but could not reach him for his side of events and so decided not to name him in this story.)

Sheriff deputies were dispatched to collect the illegal weapon. When they arrived at the man's place of business, they found, in addition to the gun, six pounds of marijuana in six separate one-pound bags. When the man arrived, they arrested him despite his protestations that he and his wife were both qualified medical marijuana users. Later that evening, the suspect's wife brought in a "physician's statement" issued by a San Francisco doctor showing he was authorized to possess medical marijuana under the terms of Proposition 215. She also showed her own 215 documentation.

(The politics of charging for possession of marijuana when a doctor is willing to document that the drug will be used for medical purposes is cloudy at best. Federal prosecutors have refused to be bound by Proposition 215, but county prosecutors have generally been more sympathetic with the wishes of the California electorate. Sources in the county sheriff's office have speculated that if the man or his wife had been able to produce valid documentation by a doctor of the drug's medical use at the time of arrest, the arrest probably would never have been made.)

Studying the case file before appearing at the hearing, Jackson noticed something about the physician's statement. Near the bottom of the document there is a section in which the doctor is supposed to indicate how long the "prescription" was in effect. The doctor had checked a box next to "six months." Yet there was nothing in the document that indicated the start date. Six months from when?

She found the answer while searching through the defendant's probation report, which documented details of his previous arrest. There, she discovered what appeared to be an identical copy of the physician's statement, with every loop and curlicue of the doctor's handwriting the same in both documents. There was one exception, however: The copy from the probation file contained a date stamp — "Issued July 10, 2001." The physician's statement that the wife had presented only had white space where the date stamp once was. Someone, she concluded, had altered an old, expired medical marijuana document to make it seem current.

In the preliminary hearing, she pointed this out to the judge. The judge then barred the defense attorney — Southern Humboldt's Ed Denson, who specializes in marijuana cases — from entering the physician's prescription into evidence. The court went into recess. Jackson was packing up her paperwork when she happened to glance over at Denson's table. According to her recounting of events, she saw Denson with both the original and the tampered version of his patient's physician's statement, one in each hand. Jackson later said that Denson came over to her table and complimented her on her catch — "Pretty slick" — before stuffing both documents in his briefcase and leaving the courtroom.

Before that moment, Jackson says now, she had assumed that the defendant or his wife had altered the physician's statement. Now she wasn't so sure. In any case, it now seemed clear to her that Denson, who had also represented the same defendant in the previous case, had in all likelihood knowingly attempted to submit a fraudulent document into the record. This is not only an ethical offense punishable by the California State Bar Association — it's also a felony.

She immediately returned to her office and discussed what she had seen with Dikeman, who was at the time a more senior colleague . She also discussed it with the office's lead investigator, Jim Dawson. They all agreed that the appropriate thing to do was to ask a judge to sign a search warrant targeted at Denson, in order to find and preserve the incriminating evidence Jackson thought she had seen.

That afternoon, Jackson sat down and typed out a long e-mail to Paul Gallegos, telling him what she had seen and arguing the need for a search warrant. She didn't hear back from him that day, nor on the following Monday. Finally, at 2:16 p.m. on the afternoon of Tuesday, June 1, he sent Jackson three e-mails in a row. In the first, Gallegos restated the evidence Jackson said she had, then said: "Ed [Denson] represented [the defendant] in the first case so he must know that the current 215 [documentation]has been forged or fraudulently altered." He then asked whether Jackson had herself notified the judge about what she thought she had seen and whether she had asked Dawson to contact Denson so he could explain himself.

In a second e-mail, sent three minutes later, Gallegos asked if Jackson had referred the matter to the Bar Association and wrote "I think this is serious conduct. My first question is always: can we prove it? What do you think?" Finally, ten minutes after that, he sent another e-mail thanking Jackson for bringing the matter to his attention.

Jackson wrote back at 3:15 p.m., answering the questions in Gallegos' first e-mail. She said that she could not have notified the judge at the time she noticed that Denson was in possession of the documents, as court had already adjourned. She said that she had held back on notifying the Bar Association until they could gain possession of the evidence, and that Dawson would not contact Denson and ask him to explain until a warrant had been served.

According to Jackson, she did not hear back from Gallegos for several days. Finally, at 8:06 a.m. on Friday, June 4, she wrote him again, asking for a decision. "Please get back to me as soon as possible as this has sat a week already and I don't want this to get stale." She says she did not get a response.

On Tuesday, June 8, the defendant's San Francisco physician wrote out a new physician's statement for him. "Three (3) lbs. of processed cannabis is not an unreasonable inventory amount for this pt.'s medical condition," it read.

The next day, Gallegos fired Jackson.

The day after that, Denson faxed the defendant's new prescription to Gallegos, along with a note: "Dear Paul: Here is Dr. Ellis' note concerning amounts of medical marijuana for [the defendant] as I promised in my e-mail." (A copy of the fax was provided to the Journal by Jackson.)

The search warrant that Jackson had proposed was never carried out. Eventually, the charges against the defendant were dropped.

When asked about this incident last week, Gallegos was vehement in his assertions that Jackson's firing had nothing to do with her proposed investigation into Denson. "Ms. Jackson may have those beliefs, but it had absolutely nothing to do with that," he said. He said that his decision to fire Jackson came long before the events surrounding this case. But he said he could not give his reasons for firing her, even after the Journal provided him with a notarized statement from Jackson authorizing him to do so. He said he had not, and never would have, contacted Denson about the proposed investigation.

In a follow-up e-mail sent to the Journal earlier this week, Gallegos said that faxes come into his office from defense attorneys all the time. A fax from Denson with a new marijuana prescription for his client would not have been unusual. He declined again to say why he had fired Jackson.

"There was a triggering event but it had absolutely nothing to do with [this case] or Mr. Denson," Gallegos wrote. He suggested that the Journal talk with Rick Haeg, the county's personnel director, who he said could verify that Gallegos had spoken with him about firing Jackson "significantly prior" to the date she was fired. (Haeg said that he did remember speaking with Gallegos about dismissing Jackson before the event, but could not say how soon before her firing he had done so).

Gallegos also wrote that members of his office had decided not to press forward with the search warrant. "I discussed the matter with both my lead investigator, Jim Dawson, and my assistant, Wes Keat," Gallegos wrote. "If either of them had thought it was appropriate to move forward on Ms. Jackson's claims, we would have proceeded on them." He wrote that there were numerous legal and factual hurdles any potential case against Denson would have had to overcome, most of them centering on whether or not Denson knew he was submitting a falsified document. He asked why neither Jackson nor Dikeman ever reported the case to the state bar.

In a call that came in just as the Journal was going to press, Gallegos said that a notice titled "Whistleblowers are Protected" was posted prominently in the office, and suggested that Jackson could easily have contacted the state Attorney General if she wished to pursue alleged wrongdoing.

Assistant District Attorney Wes Keat confirmed last week that Gallegos had issues with Jackson before she was fired, but said that any statement about his reasons for firing her would have to be speculative. When asked why the investigation that Jackson had called for had never been pursued, Keat said that he didn't know the answer. "I remember the story, and I remember it not going anywhere," he said. "I sensed that it was Paul's decision, but I never heard Paul say that much."

And though Keat said that at the time he had no reason to doubt Jackson's telling of events, and that he thought it "shocking" that a member of the bar could have knowingly attempted to deceive the court, he added that there may have been good reasons not to investigate. He just wasn't sure what they were.

"There's a few reasons why we wouldn't play in such a case," he said. "We're generally reluctant to pursue such things against other lawyers. There's some aspect, some chance, some probability that Mr. Denson made a mistake, rather than engaged in misconduct. I don't know whether he was trying to get over, or if he just made a goof, or somewhere in between."

As to the fax that Denson sent to Gallegos the day after the latter fired Jackson, Keat said there could be a reasonable explanation for that, as well. "It's not unusual for defense attorneys to approach the boss to get better treatment than what they're getting in court — sort of going over the prosecutor's head."

Reached last week, Denson initially said he had no recollection of the case whatsoever. When shown documents from the record, he was able to retrieve his own files on the case and was able to discuss it. He said that he could not speak about some aspects of the case, because he could not violate the attorney-client privilege, but said that he had not had any discussions with Gallegos about a potential investigation relating to the attempted submission of false documents — that this was the first he had heard of it. He strenuously denied having knowingly attempted to submit false evidence.

"No one in this office has ever altered a piece of evidence, and I would never knowingly present one to court," he said. "You never make a knowingly false statement to a jury or judge — it's beyond the pale. You don't do that."

Denson said that he was concerned to hear that the Journal was in possession of the fax, which he did not specifically recall sending.

"Assuming I did fax that document to Mr. Gallegos, it would have been part of a confidential negotiation to try to settle the case," he said. "This is what concerns me about these documents being out in the world, is that when you try to settle a case — those are supposed to be the most confidential documents."

Intrigued by the possibility that Gallegos was preparing to clean house in the wake of his successful defeat of the recall effort, the Journal contacted Jackson two years ago, shortly after she was fired. She declined at that time to speak about her experiences in the office, or why she believed she had been fired. She maintained that stance for two years, declining to speak to make public statements about it. Now in private practice at Eureka's Harlan Law Firm, she said last week that she hadn't wanted to see her name bandied about in the press, to be vilified by Gallegos supporters.

"I didn't talk about this at the time, because I didn't think that given what was going on it would have mattered," she said. "It would have only made me into a political football."

She said that she never reported the incident to the Bar Association because she was never able to get documentary evidence, and that by the time she had been fired the case had long since gone cold.

She decided to come forth now, she said, because she thought her story could make a difference. She makes no bones about the fact that she hoped her story would damage Gallegos politically. "If it wasn't meant to affect whether or not he got elected again, it wouldn't have come out at all," she said. She would be the first to admit that, yes, she is a disgruntled former employee.

Gallegos has said that she was fired for a good reason, and though he can't or won't speak about it, that the reason had nothing to do with the events described in this story. She believes, as does Gallegos' opponent, Worth Dikeman, that her firing had everything to do with it. It's difficult, given the long passage of time between the events and her decision to talk about them, to discern exactly what the truth is. By consciously delaying her decision to speak up until the heat of an election campaign, Jackson has only herself to blame if people do not find her explanation credible. Still, however it is read, the story does shed light on how the district attorney's office — a non-partisan arm of law enforcement — has become thoroughly consumed by politics of the bitterest and most personal sort. Draw whatever conclusions you will.

TOP

Comments? Write a letter!