Legal battle brewing over narcotics cases filed by Nevada County Sheriff’s Office
What is Pitchess and Brady?
A Pitchess motion is a request for information contained in a law enforcement officer’s personnel file. California criminal defense lawyers typically file a Pitchess motion as part of the pretrial process when they believe there might be some form of police misconduct such as use of excessive force, coercing confessions, or dishonesty in police reports. The judge will hold a private — “in camera” — hearing to decide if there are records relevant to the case. A successful Pitchess motion could persuade the prosecution to reduce, or even dismiss, charges.
Brady disclosure consists of “exculpatory” or impeaching information and evidence in a criminal case. A prosecutor must disclose evidence or information that would prove the innocence of the defendant or would enable the defense to more effectively impeach the credibility of government witnesses. Evidence that would serve to reduce the defendant’s sentence must also be disclosed by the prosecution.
Nevada County District Attorney Cliff Newell said he was just trying to do the right thing when he asked a local judge to review a handful of sealed documents relating to a narcotics officer, and determine if there was information that potentially could affect his cases (see sidebar on cases) and that needed to be released to the defense.
But local defense attorneys had a different view of the request, which initially was filed without providing them any notice.
“I’m calling it the Catholic motion — you know, when you go to confession and ask to be absolved of your sins,” said attorney Stephen Munkelt.
Attorney Heather Burke was more pointed in her assessment: “It’s a circus. This is not how it’s done.”
Burke and Munkelt are just two of the attorneys representing eight defendants in pending narcotics felony cases that, they believe, might be irreversibly tainted by possible officer misconduct.
On Friday, five of those attorneys took on Newell in court.
For nearly a year now, there has been courthouse chatter of a possible internal affairs investigation of a member of the Nevada County Sheriff’s Narcotics Task Force, Deputy Jason Mackey.
But the months ticked by with no word on a possible outcome. By last fall, San Francisco attorney Erica Treeby, followed by Burke, started filing Pitchess and Brady motions, designed to elicit potentially negative information about Mackey.
In some cases, deputy district attorneys already had disclosed to defense counsel that Brady material might exist, as they are required to do under the law.
But Treeby’s attempts to garner information reportedly were hindered by a “gag order” imposed on deputies due to the ongoing internal affairs investigation.
DA makes unusual move
In January, Newell filed a request for a judge to review documents in chambers — confidentially — to determine whether they should be disclosed to defense counsel.
“I had a question about whether a particular case, and information I have specific knowledge of, could be considered ‘Brady’ material,” Newell said, calling his request an “anomaly” and a move he had never made before. “I did an initial evaluation and determined it does not …. That being said, in an abundance of caution, I am taking it to the court and asking (the judge) to make the determination … It’s that simple.”
According to Newell, anything in a file that could be “Brady” material must be disclosed to the defense, and that typically triggers a Pitchess motion.
A Pitchess motion, which looks at complaints in personnel files, is designed to uncover potentially damaging information — exculpatory information that could lead a judge to suppress evidence.
The question becomes, does that information have anything substantial to do with an officer’s veracity or ability to testify, Newell said.
“People get written up for all kinds of things,” he said, offering up examples of fairly innocuous issues such as tardiness that might be uncovered via a Pitchess motion.
“The bottom line is, I am trying to be as transparent as I can within my legal responsibilities,” Newell added of his request to Judge Robert Tice-Raskin. “I’m trying to make sure that I have done the right thing — or, that I’ve done the wrong thing, that my analysis was incorrect.”
Defense attorneys immediately cried foul over Newell’s tactic, however.
Burke filed an objection with the court, alleging Newell was employing an “improper and secretive” process in order to circumvent his constitutional mandate to disclose Brady material.
Tice-Raskin then issued a tentative ruling that directed the DA’s Office to support its request, either by filing supplemental information or by re-filing the request together with the appropriate arguments in support of that request.
In response, Newell filed a “bench memo” that involved even more attorneys.
At a court hearing in mid-March, Burke and other defense attorneys took turns castigating the District Attorney’s Office.
“Everybody in the legal community knows … that there is Brady material relating to this officer,” Burke said, noting that it reportedly involved a complaint by another narcotics officer. “It’s been eight or nine months (and) all these defendants are languishing.”
Attorney Greg Klein also referred to a complaint having been filed against Mackey by a fellow officer and a subsequent internal affairs investigation.
“The rumor I hear, is now the FBI is involved,” Klein said. “The whole system is starting to stink.
“Police officers are public servants,” Klein continued. “If there are bad apples, this shouldn’t be hidden from the public … This is causing an odor of something underhanded — of something being hidden.”
Attorney Bill Walker chimed in, telling Tice-Raskin that accepting the request and subsequent bench memo would be “inviting the public to misinterpret what is going on.”
“This controversy has been going on for months without resolution,” Walker said. “This is not OK. This is not the way the system is supposed to work.”
Acting Assistant District Attorney Jennifer Ow, however, told Tice-Raskin, “I absolutely disagree we have Brady material,” adding, “This is an important issue — an officer’s career is involved here.”
Tice-Raskin asked for briefs from the attorneys and a response from the DA’s Office and set another hearing, for April 22.
Newell said before Friday’s hearing that there was “nothing nefarious going on.”
“This is such a minuscule issue,” he said, later adding, “I understand where they’re coming from, but I don’t play hide the ball. I never have. If something comes up, I disclose it.”
Judge orders some information disclosed after Friday hearing
During Friday’s hearing, the courtroom was crowded with local attorneys, as Burke and Munkelt argued that Tice-Raskin should deny Newell’s request, calling it inappropriate to ask the court to take responsibility for the prosecution’s duty.
Klein called the entire matter frustrating, alluding to a discussion he had with Newell in which the District Attorney claimed there was no Brady issue with Mackey and that the information under seal involved “an innocent mistake.”
If it wasn’t Brady material, Klein asked, why did Newell bring it to the judge?
“And if it was an innocent mistake, why are they allowing it to reach this stage?” Klein said. “Why are we cloaking everything in this secrecy?”
Newell responded that the material in question had previously been ordered sealed, and was information relating to a search warrant.
Several attorneys pointed out that it was difficult to make legal arguments to the court without any context, with Burke telling Tice-Raskin, “It’s a due process violation if we don’t know what the substance is — we don’t know if it is (about) Mackey.”
On direct questioning, Newell said the information did not pertain to an internal affairs investigation, which he labeled rumor or innuendo.
“I don’t want to make this more Star Chamber-ish than it already is,” Newell said, adding that he wanted to clarify the content of the sealed documents as relating to a search warrant authored by Mackey, and asking Tice-Raskin to allow the unsealing.
“I think the defense will be disappointed,” he said. “I am willing to give up this information if the court allows me to give it up.”
After Tice-Raskin reviewed the documents provided by Newell, he ordered the District Attorney’s office to unseal a memo from Newell to Nevada County Sheriff Keith Royal, dated Oct. 28, 2015.
Tice-Raskin also ordered that Newell unseal three exhibits that were attached to the memo — the affidavit for a search warrant dating back to January 2015 as well as the sealed portion of the affidavit, with several redactions to protect the identity and gender of a confidential informant, as well as a declaration in a criminal complaint filed in 2015.
Those documents were to be filed with the court by the end of the day Monday.
To contact City Editor Liz Kellar, email email@example.com or call 530-477-4229.
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