DA memo released in cases involving Nevada County narcotics officer
May 3, 2016
A Nevada County judge has released several documents — including a search warrant and a previously sealed affidavit in support of that warrant — relating to a legal battle over a number of felony drug cases where the credibility of a narcotics officer was called into question.
The documents were released following an order by Nevada County Superior Court Judge Robert Tice-Raskin in a half-dozen criminal cases involving eight defendants with arrests stemming from search warrants authored by Sheriff's Deputy Jason Mackey, a member of the Narcotics Task Force. Their alleged crimes include cultivating marijuana for profit and possessing controlled substances for sale, as well as possession of weapons and child porn.
During several hearings — involving an unusual request by District Attorney Cliff Newell to have a judge determine if he had "Brady" information that potentially could affect Mackey's cases and that needed to be released to the defense — several defense attorneys cited a complaint filed against Mackey by a fellow officer and a subsequent internal affairs investigation. Tice-Raskin then ordered the disclosure of the warrant, as well as a memo from Newell to Sheriff Keith Royal.
The memo, which was dated Oct. 28, 2015, details a discrepancy between the search warrant and the affidavit that led to the dismissal of the criminal complaint, and the sequence of events that led to the launch of an internal affairs investigation into Mackey.
According to the memo, in January 2015 Mackey authored a search warrant for the residence of Andrew Bell on Second Street in Grass Valley. The warrant was based on information from a confidential reliable informant, and that portion of the affidavit was sealed. The warrant was reviewed and signed off on by then-Assistant District Attorney Anna Ferguson and then signed by Judge Candace Heidelberger.
Bell's attorney subsequently filed a motion to unseal the sealed portion of the warrant, with the motion to be heard on May 21, 2015. That day, the memo states, Mackey approached Assistant District Attorney Glenn Jennings outside the courtroom and told him there was a mistake in the sealed affidavit that was inconsistent with the warrant.
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"Jennings' recollection is that Deputy Mackey said … there was 'something untruthful in the warrant at the time he sealed the affidavit,'" the memo states.
Jennings did not review the warrant or make further inquiries, but dismissed the case after Mackey told him he was uncomfortable going forward with the hearing and asked that the case be dropped, the memo states.
According to the memo, Newell subsequently met with Sheriff's Capt. Jeff Pettitt and then with Royal and Undersheriff Joe Salivar, and a decision was made that Newell would look into the warrant issue and the Sheriff's Office would handle any other allegations of misconduct.
Address discrepancy at issue
The memo states that the issue involved a discrepancy in statements relating to Bell's address. In the sealed warrant, Mackey wrote that his informant said he was at a specific numerical address on Second Street. But the open portion of the warrant simply refers to a residence on Second Street at which a black Thunderbird was parked. Mackey had subsequently confirmed the address during a drive-by.
Mackey explained that he "overlooked changing the sealed portion of the search warrant and only noted his mistake as he prepared for hearing," the memo states.
"After thorough review of the facts, circumstances and time lines … it is clear that (Mackey) was not trying to intentionally deceive the reader," the memo states, adding the problem appears to be a "minor inaccuracy."
During an interview last week, Royal declined to discuss the details of the memo, but told The Union that Mackey had been cleared of misconduct. But now that the memo has been released to the public, Newell provided some context in an interview Friday.
Newell noted that the assistant district attorney and the judge who initially reviewed the warrant and the sealed affidavit had not noticed the discrepancy, adding, "Even I had to read it several times. You can't look at this and say the officer was trying to deceive the court."
According to Newell, Mackey asked Jennings to dismiss the case for several reasons, including his relative inexperience due to being new to the task force.
When Bell's residence was searched, little evidence of sales was found, which dropped the case to a misdemeanor, Newell added.
"Mackey felt it was not a big deal, so let's drop it," Newell said.
"It is important to note that it was Deputy Mackey that brought the entire issue of the search warrant to our attention," Newell continued. "Since it was already sealed he could have just let it go, but to his credit he alerted the DA handling the case. I believe that in itself speaks to his integrity."
According to Newell, Jennings could have discussed the issue with Mackey then and there, but instead "jumped to conclusions and called Mackey a liar."
Newell's legal quandary
The District Attorney said the fact that the issue stemmed from a problem with an affidavit that had been sealed by a judge had tied his hands in the months since the problem came to light.
"Because it was sealed, I couldn't speak about it, unless I asked the court (for permission to do so)," Newell said.
Newell said that he couldn't disclose information about the ongoing internal affairs investigation involving Mackey because the allegations had not been substantiated and because he had found no wrongdoing in his own review.
And, he said, his office did not abdicate its duty to make "Brady" disclosures, noting that Deputy District Attorney Oliver Pong made disclosures of a potential Brady issue to defense counsel at his direction.
"There was little I could do publicly until the IA was concluded," he said, adding that there was no rush because none of Mackey's cases were coming up for trial.
"I had already determined there was no Brady material" regarding Mackey, Newell said. But, he said, he filed a request for the judge to review his memo and the warrant "in camera" — in chambers — out of an excess of caution.
"I had to do what was obviously a weird thing — it put me in a Catch-22 that I had to weave around," Newell said.
In fact, he said, the defense attorneys derailed his ability to meet with a judge so he could give them the information they sought, by continually filing motions that stopped him.
"They were saying I could not do that (request an in-camera review), but I had to, because I had information I felt obliged to give them," Newell said.
The DA expressed frustration at the defense bar tactics, which included allegations in court that the FBI was investigating — a comment Newell characterized as "rumor and innuendo."
"The defense doesn't always have the facts and the law on their side so they have to bloviate and try to obfuscate," he said. "They throw red herrings out there — they were trying to dirty up an officer to the benefit of their clients.
"I appreciate they (defense counsel) have a job to do and there are various strategies to accomplish that, but I do resent when they resort to personal attacks suggesting we aren't fully living up to our moral, legal and ethical obligations," Newell added.
Newell said that he wanted to be absolutely clear that his office will move forward with all of Mackey's cases, saying, "If I was worried about this officer, I wouldn't file his cases.
"I look forward to litigating the issues raised and putting this to rest."
To contact City Editor Liz Kellar, email firstname.lastname@example.org or call 530-477-4229.
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