She labeled him as “unethical” and “dangerous” during the campaign. Now, Noah Phillips' attorney says the attack ad Sacramento County District Attorney Anne Marie Schubert aired ahead of Tuesday’s election accusing her rival of misconduct is enough to have her office thrown off of the controversial 2016 murder case Phillips took to trial.
“What we have is a lawyer with a strong personal and professional interest in the outcome of this matter. The TV ads run by the DA about this case have moved this into the realm of egregious conflict of interest,” attorney Steven A. Lewis argued at a Friday hearing before Sacramento Superior Court Judge Curtis Fiorini, adding later, “If the head of a public agency is accused of a conflict, the whole office must be recused.”
The unique Friday motion asked Fiorini to remove the DA’s lawyers from the case, though Phillips is no longer involved in the matter. The DA’s office took Phillips, its principal criminal attorney, off of the case after defense attorneys levied allegations of prosecutorial misconduct in April.
Schubert’s campaign seized on the defense attorneys’ charges in a heavily-aired television ad that cited the misconduct claim, suggested that Phillips could face felony charges connected to the allegations and branded Phillips as “Unethical. Dangerous. Wrong for DA.”
Schubert claimed victory after Tuesday’s election with more than 60 percent of the vote, but with thousands of ballots yet to be counted, Phillips’ camp continues to wait for vote results.
Attorneys for the DA and the state attorney general’s office argued Phillips has no standing to demand the DA's removal, but Phillips’ attorney pushed ahead, calling the case “an unprecedented situation.”
“Every court in every matter has the power to disqualify,” Lewis told Fiorini, adding later, “This just doesn’t happen every day. But, you have the power to do it and it’s the right thing to do.”
Supervising county prosecutor Dawn Bladet was quick to respond.
“There’s no precedent because there’s no basis in fact that supports a conflict of interest in this case,” Bladet argued. “I don’t believe there’s a basis to take the case out of the hands of the Sacramento County District Attorney’s Office,” saying the campaign for the June election had no bearing on the case she took over from Phillips.
Fiorini told the attorneys he would issue a written ruling in two weeks. He also delayed a hearing on a motion for a new trial stemming from the defense attorneys’ misconduct claims until July 27.
Friday’s hearing stemmed from the alleged “secret deal” Phillips was accused by defense attorneys of making with murder defendant Tiwan Greenwade at trial. The accusations became campaign fodder for Schubert in the waning weeks of her bid to defeat Phillips and win reelection.
The purported pact included an emailed “shopping list” of demands that defense attorneys argue Greenwade was to testify to in order to bolster Phillips’ case against Greenwade’s co-defendants. In exchange, Phillips allegedly agreed to argue for a lesser manslaughter charge in his summation without the knowledge of the co-defendants’ lawyers.
Jurors ultimately found Greenwade guilty of manslaughter in the August 2016 killing of Ashok Kumar, 60, at his south Sacramento home. Kumar’s wife, Rohini Kumar, Vicky Lynn Rainone and Raghua Sharma were convicted of first-degree murder.
All four were seated in court for the Friday hearing. They remain in custody at Sacramento County Main Jail awaiting either sentencing or the granting of a new trial.
Phillips sat is a rear row of the gallery. Fiorini said Phillips may be called to testify at the July 27 hearing.
The misconduct allegations have not been proven and Phillips condemned the claims as political dirty tricks engineered by Schubert. But Schubert did not back away from the charges and they were quickly woven into an ugly election race between the two bitter rivals for the District Attorney’s seat.
The misconduct claims were further injected into the race with the anonymous release in May of a racist, sexist email sent by Phillips’ uncle in February 2016 – six months before the Kumar case was handed to prosecutors - to Phillips’ county-owned work computer.
The damaging email released to reporters days before the election delivered another blow to her rival’s election hopes.
Lewis argued the email’s release was politically motivated, the misconduct allegations acting as cover for the late-campaign bombshell.
Schubert, he said, was “using this case not just to call Phillips unethical, but to release an embarrassing email that predated the (Kumar) murder by six months.”
Bladet said she played no role in the email’s discovery: “This wasn’t a dirt-finding mission on behalf of the campaign,” Bladet said.
She defended the office’s investigation into Phillips’ alleged conduct at trial and added Phillips was not forthcoming with DA officials who wanted to talk with him about the misconduct allegations.
“The People’s objective is transparency. The People’s obligation is to do what’s right and just. That is always of preeminent importance to our office – to find that truth and use that truth,” Bladet said. “Mr. Phillips failed to come to us with his version of the truth.”
An embarrassed Phillips in May said he took “full responsibility” for the email which trafficked in ugly racist and sexist stereotypes of women of a variety of races and nationalities and his response that the email was “work appropriate anywhere.”
He also attacked the email’s leak as late-campaign subterfuge by Schubert operatives, calling it “as low as politics goes.”
District Attorney’s officials said the offending email was retrieved by a tech staffer during an internal investigation into the defense attorneys’ claims of prosecutorial misconduct, later clarifying that the scouring of Phillips’ workplace email server recovered messages dating back to 2013.
But Schubert in a Capital Public Radio interview in the campaign’s final week avoided questions on the source of the emails.
“I don’t want to talk about the emails anymore,” Schubert said in May on “Insight with Beth Ruyak,” when CPR’s Ruyak asked her who leaked the email and whether the leak was the work of an office insider. “These emails said what they said and I just want to leave it at that,” Schubert said.