Are you kidding me? I want to give you the facts of this case slowly, as I find it hard to believe. Calvin Parker is the defendant in this case, as he is accused of murdering and dismembering his Brazilian housemate. Upon his arrest, the San Diego District Attorney’s Office sent John Shale, one of their psychiatrists, to evaluate Mr. Parker. So far so good; nothing unusual yet. What takes this case into Rod Serling’s Twilight Zone is the fact that Dr. Shale is also a lawyer; in fact, he is a part-time Deputy District Attorney, and was assigned to be one of the trial attorneys on this case. In other words, first he evaluates the defendant in his role as Dr. Shale, and then he prosecutes Mr. Parker as Deputy District Attorney Shale. Do you think there’s a conflict there? Maybe I ought to start doing that. In the criminal cases I defend, I could perform psychiatric evaluations on my clients as Dr. Unger, Psychotherapist, and then represent the people in court. Do you think that I might be somewhat conflicted when evaluating the individual about to become my law client?
The judge hearing this case indicated that he had never heard of anything like this in his thirty years as a judge; however, he did not find any law that would cause the DA’s office to have to disqualify itself from the case.
To add insult to injury, the Judge in this case, Michael Wellington, found that John Shale did not engage in misconduct when he called the defense attorney’s expert psychiatrist to attempt to get information from her about her opinions and conclusions regarding the defendant and further attempted to get her to change her mind away from her pro-defense view. The Judge called Shale’s actions more in the line of stupidity than bad faith. That is absolutely ridiculous. The Judge also used the word “inattention” to characterize John Shale’s behavior.
Mr. Shale’s career developed in the opposite order of that which I pursued. Mr. Shale had been a psychiatrist for a lengthy period of time, who then went to law school and passed the bar in 1999. I have been practicing criminal defense law for twenty-one years, and in 1994, I went back to school at night to become “Dr. Charlie” and to see patients as a psychotherapist.
When Parker was arrested, Shale was contacted by a Deputy District Attorney named James Pippin, who was the Division Chief, and he was told that he would be sitting second chair if the case went to trial, and he should go to the police station to evaluate Mr. Parker. What was Pippin thinking?
When he arrived at the police station, Mr. Shale observed police investigators interrogating Mr. Parker and then Shale went in alone. At the time Mr. Shale interviewed Parker, attorneys from the Public Defender’s Office had not yet been appointed to defend Parker; however, when they watched the video tape of Shale’s questioning of Parker, they stated it was something that had very little to do with psychiatry, and was “a fine dress rehearsal to cross examination.” Nothing like getting a free pass to get a practice round in of cross examining the defendant.
Although the Judge did not make the rulings I would have liked to have seen, the good news is that, perhaps due to publicity, Dr. Shale is no longer assigned to prosecute this case. There is a difference between something that is legally wrong, and something ethically or morally wrong. If this situation does not fit the former, it certainly fits the latter. While Dr. Shale is no longer prosecuting Mr. Parker, Deputy District Attorney Pippin indicates that they still may call Shale as an expert witness in Parker’s trial when it commences.
Rest assured that if Parker is convicted and Shale testifies, there will be an appeal in this case. This is clearly an opportunity for an appellate court to step in and set some firm rules regarding prosecutorial misconduct.
Dr. Charles J. Unger is a criminal defense attorney in the Glendale law firm of Flanagan, Booth & Unger, and a therapist at the Foothill Centre for Personal and Family Growth. Mr. Unger writes a bimonthly column on legal and psychological issues. He can be reached at firstname.lastname@example.org