For months, she’s been investigating the case of illegal campaign mailers sent during a San Jose City council race.
The mailers were anonymous and intimated candidate Magdalena Carrasco was aligned with communist Vietnam.
The district attorney‘s office said in the early summer that one of the fliers contained the DNA of former supervisor George Shirakawa, who is serving time for other financial crimes.
So last month, lead prosecutor Karyn Sinunu-Towery hauled Carrasco’s opponent in that race, current Councilman Xavier Campos, in front of a grand jury looking into the illegal mailer case.
But NBC Bay Area has uncovered Sinunu-Towery may have had a stake in that race by donating to the campaign of Carrasco.
“The question is who is the right person for this job. Somebody senior. And is there somebody else who has not been involved in any of the races,” said Judy Nadler, Senior Fellow on Government Ethics at Santa Clara University’s Markhula Center.
Nadler wants to know if there’s a protocol in place at the D.A.’s office to make sure there are no appearances of conflict of interest.
But Hastings Law professor, Geoffrey Hazard, said that although the donation was minimal and made a long time ago, prosecutors have to remain above the fray.
And to protect the integrity and reputation of the office, Hazard said Sinunu-Towery should have stepped aside in the mailer case.
“I think the people would expect the people n charge of that investigation be free of any biases or potential prejudices against the persons who are the target of that investigation,” said former Superior Court Judge Gregory Ward, who is now Campos’s lawyer.
D.A. Jeff Rosen would not grant an on camera interview.
But in two statements, Rosen wrote to NBC Bay Area, "California law does not require recusal of a prosecutor unless there is such a disabling conflict that it is unlikely that the defendant would receive a fair trial. The fact that one of the two prosecutors in the Shirakawa case made a $100 political contribution to the opponent of a friend of the defendant does not even approach the type of conflict that would necessitate recusal."
"We are not sure why Xavier Campos believes that he would not be treated fairly by the District Attorney's Office. Mr. Campos has been identified as a witness in at least two other criminal investigations, and has spoken to investigators, yet he has not been charged by our office with a crime."
"Ms. Sinunu-Towery brought this $100 political contribution to my attention last May or June, shortly after we learned that DNA taken from former Supervisor Shirakawa matched DNA found on an illegal 2010 political flyer. Because Ms. Sinunu-Towery has never had a personal relationship with Magdalena Carrasco and her political contribution was nominal, I determined that removing her as one of the two prosecutors was not required by statute or case law. While some may differ on what it takes for prosecutors to maintain appearances, my job is to follow the California law on conflicts, and make my decision in the best interests of an effective prosecution."
To which Ward said, “I think that raises some troubling questions whether the investigation is impartial.”
A source in the Campos camp said they are considering taking up the issue with the State Bar of California. The Bar told NBC Bay Area it can’t comment on potential cases that might come before the board.