Attorney Who Challenged Murder Prosecution Gets Trial on Whistle-Blower Claim

By Joanne Deschenaux July 9, 2019
Attorney Who Challenged Murder Prosecution Gets Trial on Whistle-Blower Claim

A former deputy district attorney claims that his employer retaliated against him after he insisted that a criminal defendant who was on trial for murder was innocent. A California appellate court recently ruled that the plaintiff can proceed to trial with his whistle-blower claim.

California employers may not retaliate against workers who reveal to a supervisor—or to a government or law enforcement agency—employer conduct that the worker believes is illegal.

In this case, the plaintiff told his supervisors that evidence in the murder investigation showed that the defendant was innocent. He believed that continuing to prosecute would violate his ethical duties under California law and the defendant's constitutional rights. Though the murder charges were ultimately dismissed, the plaintiff claimed that supervisors repeatedly ignored his recommendations and evidence and made his working conditions intolerable after he complained about the prosecution.


The plaintiff worked for Riverside County as a deputy district attorney in the homicide unit. In 2011, an assistant district attorney assigned him a case and said she believed the defendant was innocent. Although the defendant had admitted committing the crime, the assigning attorney believed the defendant's confession was coerced.

[SHRM members-only toolkit: Preventing Unlawful Workplace Retaliation in California]

In a December 2011 e-mail, the plaintiff told his supervisor and the assistant district attorney that he didn't think prosecutors could prove the case beyond a reasonable doubt, and he recommended dismissing the case.

In May 2012, the plaintiff received results from DNA testing that cleared the defendant. He turned the results over to defense counsel and told his supervisors that he believed there was no longer probable cause to file a case against the defendant.

In September 2013, further investigation implicated the defendant's roommate in the murder—a fact that the plaintiff told his supervisors.

The district attorney's office finally dismissed the case against the defendant in February 2014.

However, the plaintiff stopped working for the county in June 2014, claiming that his supervisors had made his working conditions intolerable.

In July 2014, the plaintiff sued the county for violations of California Labor Code Section 1102.5, among other claims. The county filed a motion for summary judgment, seeking to have the claim dismissed before trial. The county asserted that the plaintiff could not establish a claim because he could not prove that he engaged in protected activity under the labor code. The court granted the motion, and the plaintiff appealed.

The appellate court reversed the lower court's decision, ruling that the plaintiff's claim could proceed to trial.

Reasonable Suspicion of Illegal Activity

The court first noted that an employee engages in protected activity under California's labor code when the employee discloses "reasonably based suspicions of illegal activity" by the employer. To have a reasonably based suspicion of illegal activity, the court said, the employee must be able to point to some legal foundation for his suspicion—some statute, rule or regulation that the employer may have violated.

Although the plaintiff did not expressly state that he believed the county was violating a specific state or federal law, California's labor code doesn't require an express statement. It only requires that an employee disclose information that he reasonably believed revealed unlawful activity, the court said.

By presenting DNA evidence clearing the defendant, as well as recorded phone calls in which the defendant's roommate admitted to the killing, the plaintiff showed that he believed that continued prosecution would violate the defendant's constitutional due process rights as well as his ethical obligations under state law. Therefore, the plaintiff may have engaged in protected activity, the court ruled.

Ross v. County of Riverside, Calif. Ct. App., No. D075106 (June 20, 2019).

Professional Pointer: An employee is covered by the whistle-blower protections of California Labor Code Section 1102.5 even if his or her employer did not violate the law, as long as the employee reasonably believed that illegal conduct occurred.           

Joanne Deschenaux, J.D., is a freelance writer in Annapolis, Md. 


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