By Maurice Possley
In October of 2003, the California Appellate Court cited Orange County deputy district attorney Michael Flory for prosecutorial misconduct for knowingly violating a court order in the prosecution of Stephen Walter Pigage in a methamphetamine possession case.
The court found that Flory misstated the law of entrapment and engaged in argument that improperly commented on the defendant’s failure to come to court for the second day of the trial. He carried through on his threat to Superior Court Judge Stuart Waldrip to deliver the argument in defiance of the judge’s order barring such a comment.
The Fourth District Appellate Court said, “Flory’s threat to defy the court’s order was unprofessional and improper, and his decision to act on this threat was outrageous.”
And the appellate court took the rare step of ordering that a copy of its order be sent to the California State Bar for their review for possible disciplinary action. (People v. Stephen Walter Pigage, 112 Cal. App.4th 1359)
The finding that Flory engaged in prosecutorial misconduct was not the first during his career as a prosecutor. And it was not the last.
On Oct. 4, the Northern California Innocence Project released a study of prosecutorial misconduct in California: “Preventable Error: A Report on Prosecutorial Misconduct in California 1997-2009.” The report identified more than 700 cases where courts found prosecutorial misconduct, including 159 where the misconduct was “harmful”—meaning it led to reversals of convictions or sentences, mistrials or the barring of evidence.
NCIP researchers were able to identify the prosecutors in more than 600 of the cases. An analysis of those reveals that Flory was cited in six for misconduct—more than any other prosecutor in the state of California.
From 1997 through 2009, Orange County prosecutors were cited in 58 separate cases—nine in which the conduct was deemed harmful. In those nine cases, prosecutors were found to have suppressed evidence favorable to defendants, discriminated against minorities in jury selection, presented false evidence, and engaged in improper cross-examination and improper argument.
Flory was first cited in 2001 (People v. Daniel Phillip Gomez (111 Cal. Rptr. 2nd 546), when the Fourth District Appellate Court reversed the first degree burglary conviction of Daniel Gomez because Flory engaged in racially discriminatory jury selection. The court found that his proffered race-neutral justification for striking a Hispanic juror was “both illogical and lacking in any support in the record.”
The court said that Flory’s explanation “amounted to pure speculation” and that his logic was “almost surreal.”
Two years later, the court issued its finding in Pigage, though the court affirmed the conviction because much of Flory’s misconduct occurred outside the presence of the jury.
At issue in the case was Flory’s request that the trial judge give a jury instruction that said jurors could infer consciousness of guilt by Pigage, who was free on bond, because he failed to come to court.
When the judge refused to grant the request, Flory said, “With all due respect, your honor, I’m still going to argue…consciousness of guilt for him not being here. I have pulled cases for the court which show that that (sic) is proper, and I am just letting everyone know I’m arguing it.”
When Pigage’s attorney objected, Superior Court Judge Stuart Waldrip said, “I think under my ruling that would be improper argument.”
Flory replied, “I’m still going to argue it, with all due respect.”
Waldrip said, “Well, in the face of my ordering you not to, Mr. Flory?”
“Yes,” Flory said.
The judge warned Flory that violating a court order was improper and asked, “Why do you need to push it?”
“Because I can, and I’m within the rules of doing it,” Flory replied.
During his rebuttal argument, Flory did, indeed, make a reference to Pigage’s absence from the trial.
The Appellate Court said in its ruling, “Under no set of circumstances is Flory’s behavior justified…and constitutes a knowing violation of the court’s order. There is simply no other reasonable interpretation of Flory’s conduct.”
The Court added, “Flory’s continued bickering with the court and threats of disobedience, even at the risk of a mistrial, cannot be characterized as mere advocacy. His further decision to defy the court’s order is outrageous misconduct….Flory actively undermined the cause of legal professionalism and respect for our judicial system.”
In 2004, Flory was cited in two narcotics prosecutions for misconduct. (People v. Jesus Soria Guzman, 2004 WL 552973 and (People v. Juan Manuel Pacheco, 2004 WL 1053654) Both convictions were affirmed.
The Fourth District Appellate Court said Flory engaged in argument in the Guzman prosecution that was “at the least, ill-advised, and, at the worst, outrageously inappropriate…”
The appellate court said that Flory argued Guzman’s lawyer knowingly put on a false defense, making comments that were “unquestionably improper…In context, the comments implied that the prosecutor personally knew that the defense counsel’s case was based on false testimony or that the defense was suborning perjury. Such insinuations are barred from argument…and every prosecutor should know better. Such mistakes from a veteran prosecutor are unacceptable.”
In the Pacheco case, the appellate court found that Flory had improperly cross-examined Pacheco about his refusal to talk to police after he was arrested and improperly questioned the truthfulness of Pacheco and his wife when questioned on the witness stand.
“The prosecutor’s cross-examination of defendant and statement during his closing argument…constitute improper comments on defendant’s assertion of his right to remain silent.” The Court also said that during cross-examination of Pacheco, Flory “committed misconduct by improperly making editorial comments regarding defendant’s veracity.”
In 2005, the Fourth District Appellate Court cited Flory for misstating the law of entrapment in a methamphetamine prosecution. (People v. Carlos Echeverria, 2005 WL 1030128)
The conviction was affirmed because “the trial was not so infected with unfairness that the defendant was deprived of due process. The prosecutor’s misstatements about the law did not render the trial fundamentally unfair or involve the use of deception or reprehensible methods.”
Also in 2005, the Fourth District Appellate Court criticized Flory in a heroin possession prosecution (People v. David Sandoval, 2005 WL 1400163), finding that he “breached his duty to correct testimony he knew at the time to be false.”
The Court found that Flory allowed Los Angeles Police detective Benito Aguirre to testify falsely that he had not spoken with Flory about certain testimony. Flory, at a motion for new trial after the conviction, testified that he and Aguirre had, in fact, discussed that testimony.
“Flory had a duty to correct Aguirre’s false testimony,” the Appellate Court said. “Flory stood mute, however, while Aguirre testified he did not speak with Flory…” The Court said the misconduct was not a denial of due process because the false testimony was corrected by a stipulation read at trial and affirmed the conviction.
“Our affirmance,” the Court added, “should not be read as approval of Flory’s conduct. Indeed, we strongly disapprove of his conduct and expect it not to happen again.”
Flory, who filed election papers to run for Riverside District Attorney in 2010 but later withdrew, referred questions from NCIP to his superiors.
In response to questions, William Feccia, Orange County senior assistant district attorney, declined to say whether Flory was ever disciplined internally or by the state bar for the misconduct findings, citing privacy rules of the State Bar and the District Attorney’s office.
California state law requires courts to report findings of prosecutorial misconduct to the State Bar only if the misconduct results in the modification of a judgment in the case. The NCIP report found numerous instances where the same misconduct that resulted in a reversal occurred in cases where judgments were affirmed—and thus not required to be reported.
Under that standard, only one of Flory’s cases was required to be reported—the reversal in 2001 in the Gomez case.
The NCIP report recommended that the law be amended to require the reporting of egregious misconduct in cases where the judgments were affirmed.
State Bar records show Flory has no public record of discipline.