Decision about Deputy Jason Mackey now rests with Nevada County judge
April 10, 2018
Defense attorneys seeking to dismiss a search warrant penned by Deputy Jason Mackey slammed the Nevada County officer on the final day of a six-day hearing, alleging corruption and expressing outrage over his purported actions.
Defense attorneys Heather Burke and Stephen Munkelt represent two men facing misdemeanor marijuana charges that stem from a warrant Mackey wrote. They say that Mackey's misstatements in that warrant, whether intentional or reckless, should lead a judge to rule that evidence gained from it can never reach a jury. Alternatively, they want the case dismissed against their clients.
The prosecutor in the case disputed those arguments, saying the attacks against Mackey are politically motivated.
Superior Court Judge Robert Tice-Raskin, who made no decision Tuesday, said he'd issue a written ruling.
Munkelt, who represents Corey Connors, said the standards of the District Attorney and Sheriff's offices have eroded. He argued District Attorney Cliff Newell in June 2015 told his then-Assistant District Attorney Glenn Jennings, who is running against Newell in the June 5 election to become the county's top prosecutor, to stop an investigation into Mackey.
"I'm embarrassed to live where they do that kind of thing," Munkelt said.
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That action delayed the revelation that a warrant Mackey wrote in 2015, which is unrelated to the misdemeanor marijuana cases, was correct. The delay of that discovery sparked an internal investigation into Mackey and several attacks by defense attorneys in cases involving the deputy's search warrants.
Burke, who represents Mark Gonsman, said prosecutors should have immediately revealed the discovery about that 2015 warrant when they learned it. She referenced former Deputy Mark Hollitz, saying he lost his career in law enforcement over the issue. She also referenced Jennings, saying he was forced from his position under Newell because of it.
Hollitz alleged Mackey had problems and requested a transfer out of the Narcotics Task Force, where they both served. Jennings has said he refused to sign a statement that claimed an investigation into Mackey cleared the deputy of wrongdoing, calling it false.
Assistant District Attorney Chris Walsh said Burke and Munkelt ignored the reason Hollitz left his job — referencing accusations that the former deputy had a sexual relationship with a confidential informant.
Walsh said Jennings could have stopped the course of events that led to accusations against Mackey. Instead of dismissing one of Mackey's drug cases because the deputy thought he'd written a bad warrant, Jennings should have examined the warrant himself.
"The People from the beginning have thought this was a politically motivated motion," Walsh said. "I do think this is an outrageous and frivolous motion on the part of the defense."
Defense attorneys in the case made two main arguments: that Mackey's search warrant against Connors and Gonsman was incorrect, and that law enforcement and the District Attorney's Office had concerns about his affidavits that led to additional supervision and probation.
Mackey should have included those concerns in his search warrant, which could have affected a judge's decision whether to sign it, they said.
Burke argued that Mackey on Friday testified he saw no marijuana while conducting air surveillance. That testimony conflicts with the affidavit he wrote in December 2015 that states he saw multiple pot plants.
"Whether that's reckless or whether that's intentional, I think, comes down to his state of mind," Burke said.
Burke said Mackey had what she called a giddy acceptance about committing errors. His superiors had strong concerns about him — concerns that the judge who signed the search warrant against her client never saw in the affidavit filed by Mackey.
"Strong concerns as to this officer's veracity or ability to tell the truth," Burke said.
Munkelt argued that the District Attorney's Office had an investigation into Mackey before it stopped in favor of a Sheriff's Office probe. Additionally, concerns over Mackey's ability to write affidavits led his superiors to assign an experienced officer to him.
"When, if ever, should that kind of information be communicated to the magistrate who's reviewing the warrant?" Munkelt asked.
Burke and Munkelt also attacked the claims Mackey made in the search warrant, which they called "bare bones." Munkelt gave Tice-Raskin a handful of examples of proper search warrants — officers describing the shape of a marijuana plant, its size and color.
"These things are completely missing," Munkelt said of Mackey's warrant.
Walsh argued defense attorneys must show Mackey lied or knowingly omitted information from the warrant for the judge to rule that a jury can't see evidence gained from it. If neither occurred, the search warrant stands.
According to Walsh, defense attorneys have argued that Mackey's search warrant was incomplete. However, a different judge already found probable cause to sign that warrant.
Defense attorneys also argued that Mackey in his warrant said he took pictures of marijuana, though the pictures he attached to the warrant show no pot.
Walsh said the photos intended to show the location only.
"He made it very clear — those photographs were not attached to show there was marijuana," Walsh said.
What Walsh sees as the main argument against Mackey is the issue of credibility. The prosecutor said defense attorneys have made a concerted attack against Mackey — an inappropriate method of trying to have a search warrant dismissed.
Hollitz didn't want Mackey in the Narcotics Task Force and failed to properly train him. Additionally, Mackey had personal stresses in his life at the time. Mackey needed more training. He made mistakes, but no evidence shows he lied, Walsh said.
"Even police officers should not be considered guilty until proven innocent," he added.
To contact Staff Writer Alan Riquelmy, email firstname.lastname@example.org or call 530-477-4239.