Bench Memos

Courageous AGs Weigh In On Side of Truth and Justice

Earlier this month, the AGs of Utah, Arizona, Nevada, Nebraska, and Wisconsin filed an amicus brief in California state appeals court supporting the defendants in a lawsuit arising out of the Moonlight Fire, the 2007 forest blaze that authorities blamed on a logging company. One would hope that the primary argument in the brief would be uncontroversial: “[g]overnment investigations and prosecutions must be conducted with absolute integrity and a commitment to uncovering truth and doing justice.” Unfortunately, it looks like California’s Attorney General, Kamala Harris, needs some reminding.

The AGs’ brief makes a powerful case that the state of California really dropped the ball on this one (citations omitted):

[Wildland Fire Investigation Training and Equipment Fund, known as WiFITER] was an off-books fund set up by a small group within Cal Fire, for the benefit of Cal Fire fire investigators, to hold money recovered found that WiFITER also created an improper financial incentive for the government’s investigator and disclosed expert; the fund has since been found unlawful by California’s State Auditor, and has been dissolved. In the face of these abuses, the court below could recall “no instance in experience over forty seven years as an advocate and as a judge, in which the [California] Attorney General so thoroughly departed from the high standard it represents, and, in every other instance, has exemplified.”


Mr. White—a disclosed expert—had an improper financial incentive in the case as a result of WiFITER. As Judge Nichols found, the evidence disclosed demonstrated that Cal Fire was motivated to target affluent defendants to keep WiFITER from “running in the red,” that they were looking for their next “high % recovery,” and that Mr. White, the lead Moonlight Fire investigator, was a direct beneficiary of funds from that account and participated in managing it.

There’s plenty more here.  You can also read my previous coverage of this case here, here, here, here, here, and here. It’s a chilling tale of what happens when the government forgets that its job is to seek justice, not just to win. 

Jonathan KeimJonathan Keim is Counsel for the Judicial Crisis Network. A native of Peoria, Illinois, he is a graduate of Georgetown University Law Center and Princeton University, an experienced litigator, and ...


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