In People v. Superior Court, supra, the Supreme Court of California denied the request for a writ of mandamus to force the trial judge not to order the recusal of a district attorney. Id. 137 Cal.Rptr. at 478, 561 P.2d at 1166. The court found that the trial judge did not abuse his discretion in ordering the recusal of the district attorney when the mother of a homicide victim was employed as a discovery clerk and was assigned to the very office in which the prosecution of the case was being handled. Id. at 1167. Furthermore, the prosecution's theory of the case involved proof that the victim's wife hired the murderer to kill her husband because of a protracted dispute over the custody of their child. Id. Thus, the victim's mother not only was emotionally involved with the case, but she was also scheduled to be a material witness at the trial. Id. Moreover, she stood to gain custody of the child if the defendant was convicted. Id. In fact, a contested guardianship proceeding was pending between the two women. Id. This dispute arose after the defendant was arrested and the child was placed in the grandmother's custody in derogation of his mother's wishes. Id. Indeed, there was evidence that his placement occurred after the police had conferred with the district attorney's office. Id. The court held that the trial court, in the circumstances presented, did not abuse its discretion and could find that the prosecutor might appear to have an emotional stake in the case of the sort that could disturb his exercise of impartial judgment in pretrial and trial proceedings. Id. at 1174.
In May v. Commonwealth, supra, the Court of Appeals of Kentucky reversed the imposition of a $ 1,000.00 fine and conviction for assault and battery against a Commonwealth's attorney. The ground for the reversal was certain inflammatory remarks the prosecutor had made to the jury during his final argument. Id. at 164. The victim of the assault and battery also served as the prosecutor in the case. The court held that "this dual capacity . . . was perhaps permissible." Id. at 162.
In State v. Jones, supra, the Supreme Court of Missouri upheld the appointment by the court of a special prosecutor when the prosecutor had been disqualified because of his interest in the case. Id. at 85. In fact, the prosecuting attorney and the defendant were involved in an automobile accident after which the prosecuting attorney filed an information charging the defendant with operating his car in a state of intoxication. Id.
In this case, none of the Assistant United States Attorneys actually prosecuting the case has been a victim of any of the charges in the indictment. Further, none of the government attorneys has shown any special emotional stake in the outcome of the case. Accordingly, the cases relied on by the defendants are inapposite.
If any member of a law firm has an interest in the outcome of a case, the entire firm is disqualified. See ABA Opinion 296 (1959). However, this rule does not extend to encompass an Office of a United States Attorney. A United States Attorney's Office is unique in that it does not represent ordinary parties but the sovereign whose obligation is to govern impartially. See Berger v. United States, 295 U.S. 78, 88, 55 S. Ct. 629, 79 L. Ed. 1314 (1934). Furthermore, the members of an Office of a United States Attorney have no interest in the success of the litigation of their associates as do members of a private firm. Therefore, the fact that one member of the Office may have a disqualifying interest in the case does not preclude the entire Office from handling the case. Accordingly, the Court finds that disqualification of the Office of the United States Attorney for the District of Columbia would not be appropriate in the facts and circumstances of this case.
The defendants seek an order removing Assistant United States Attorney Steven C. Tabackman from the prosecution on the ground that he was employed by the law firm of Nussbaum & Owen, which represents two of the defendants, during a period in which matters material to this prosecution were pending within that law firm. The defendants expressly do not assert that Tabackman, during his employment, was privy to the documents, legal memoranda, strategy discussions, or witness interviews concerning the case; nor do they accuse Tabackman of using knowledge acquired during his private employment in opposing the defendants' motions. Defendants' Motion to Remove Assistant United States Attorney Steven C. Tabackman from the Prosecution at 4 (May 14, 1979). Instead, the defendants rely on Canon 9 of the Code of Professional Responsibility which commands the avoidance of the appearance of impropriety. A short review of the undisputed facts of this matter illustrates that the continuation of Tabackman in the prosecution of this case would not result in any improper appearance.
Tabackman was employed by Nussbaum & Owen for a total of twenty-six hours over a six-day period. He worked on a single civil case which was unrelated to this action. His employment with the firm ended before the firm was retained by the Church of Scientology or the defendants in this action. Accordingly, the Court finds that Tabackman's continued participation in the prosecution does not present the appearance of impropriety.
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