Documents disclosed in case involving Nevada County Sheriff’s narcotics detective | TheUnion.com

Documents disclosed in case involving Nevada County Sheriff’s narcotics detective

Nevada County Sheriff's Det. Jason Mackey testifies in a drug case as defense attorney Stephen Munkelt listens, in an April hearing in Nevada County Superior Court.

The Nevada County District Attorney's Office has released documents in its internal investigation of narcotics detective Jason Mackey to two attorneys representing clients in felony drug cases.

But at a Superior Court hearing in one of those cases, defense attorney Heather Burke said the information raised a slew of new questions — including whether the proper remedy for the late disclosure is the dismissal of charges against her clients.

Mackey, a member of the Nevada County Sheriff's Narcotics Task Force, has been under intense scrutiny by the defense bar for more than a year, and reportedly was cleared by his department of any misconduct after a lengthy internal affairs investigation.

Burke had filed motions to force the release of documents relating to Mackey, and subpoenaed records from the DA's office, listing District Attorney Cliff Newell and investigator Randall Billingsley. That hearing was set for Tuesday morning.

Burke alleged in her motion that there were complaints from other sheriff's deputies and that then-Assistant District Attorney Glenn Jennings initiated his own investigation. Burke further alleged that Newell has been in possession of the substance of the complaints against Mackey since early 2015, but has never disclosed that information.

On Tuesday, Burke told Judge Robert Tice-Raskin that she has been seeking the information that was released to her late Friday since January.

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Then, she said, Newell asked Tice-Raskin in late April to review a memo he had written the prior fall regarding Mackey.

The prosecution told the defense attorneys they would find the information that was being disclosed "woefully disappointing," Burke said.

It was only after that, through her own investigation, that Burke discovered Newell's office conducted an investigation that included interviews with other deputies.

The documents released to Burke had not been previously disclosed, she said, adding, "What has become clear is that it is the prosecution office's compliance that has become woefully disappointing. This information was not given over in a timely manner."

Burke further argued that the late disclosure of what could be evidence favorable to the defense — in that it could serve to impeach the credibility of the testifying officer — negates the entire judicial system and turns Nevada County into a police state.

"We need an evidentiary hearing on the scope of the violations here," she told Tice-Raskin. "Who knew about this? How long have they known? And why was this information not disclosed? This requires some sort of fact-finding mission."

Burke added that remedies could include dismissal of the case due to outrageous government misconduct.

Assistant DA disputes defense allegations

Assistant District Attorney Joe Alexander, who replaced Jennings, noted that he was a late arrival to the issues surrounding Mackey's cases.

But, he said, some of the information that had been sought by Burke was contained in documents that had been sealed by the court, which caused delays in disclosure.

Alexander said that his office did initiate an investigation into Mackey — but that a decision was made by Newell and Jennings that it would be appropriate to turn it over to the Sheriff's Office.

The complaints they uncovered "didn't rise to the level of criminal conduct," Alexander said, adding that he believes the Sheriff's Office was the appropriate agency to conduct the investigation, given that it could compel interviews from its deputies. "There was nothing to suggest Deputy Mackey engaged in any conduct that is even borderline criminal," Alexander said.

The Assistant District Attorney said he reviewed the file and decided to disclose it, even though he did not feel it constituted Brady material — evidence or information that would prove the innocence of the defendant or impeach the credibility of government witnesses.

"There was one witness statement from an officer who accuses Mackey of being dishonest," Alexander said. "I reviewed it and I don't think it amounts to very much at all."

Alexander said he opposed Burke's subpoenas because they violated proper procedure, but told Tice-Raskin he had nonetheless disclosed all the information from his office.

He did agree with Burke on one point.

"I am of the opinion the best thing for Deputy Mackey, and all parties concerned, is to have a full evidentiary hearing," Alexander said. "Do these accusations add up to a hill of beans, or not? Let's call each of (the complainants) as a witness and put them under oath."

Burke continued to insist that the information was disclosed nearly a year late and that the DA's office should be held accountable. But Alexander said late disclosure does not necessarily constitute a "Brady" violation.

And, he said, it had not even been determined by the court yet that the documents were exculpatory information.

"We do not skip past that determination and go straight to, how do we punish the prosecution," he said.

Burke agreed that the court needed to determine if the documents were Brady material.

But Tice-Raskin reminded both parties that there was no motion before him on that issue on which he could rule. He said he was focusing only on the very narrow issue regarding whether the subpoenas were properly served, as well as the motion to compel further discovery, and took the matter under submission.

The defense bar will take another shot at the issue Friday, with a different attorney and a different judge. Stephen Munkelt has filed similar motions on behalf of client Joel Franks, and the matter is set for an 11 a.m. hearing before Superior Court Judge Candace Heidelberger.

To contact City Editor Liz Kellar, email lkellar@theunion.com or call 530-477-4229.

Prior coverage

Dec. 6, 2016: Probe shut down: Former ADA allegedly forced to resign after investigation into narcotics detective

Dec. 5, 2016: Defense attorneys continue to question credibility of Nevada County Sheriff’s narcotics detective

May 2, 2016: DA memo released in cases involving Nevada County narcotics officer

April 29, 2016: Sheriff: Narcotics officer cleared of misconduct after months-long investigation

April 25, 2016: Legal battle brewing over narcotics cases filed by Nevada County Sheriff’s Office