Defense attorneys continue to question credibility of Nevada County Sheriff’s narcotics detective
December 4, 2016
Back in May, Nevada County Sheriff Keith Royal — and District Attorney Cliff Newell — declared a simmering controversy over the veracity of a narcotics officer was over and behind them.
But with new motions being filed since then by defense attorneys, one of which is set to be heard Tuesday, that contention is in dispute.
Attorneys representing a number of defendants in drug cases had been complaining for nearly a year about Deputy Jason Mackey, a detective with the Narcotics Task Force.
The attorneys believed their clients' felony complaints could be irreversibly tainted by possible officer misconduct, and had been filing multiple motions designed to elicit potentially negative information about Mackey.
In response to the furor, Royal and Newell said Mackey had undergone rigorous scrutiny in the form of an "exhaustive" seven-month-long internal affairs investigation into his credibility that generated a 900-page report.
Newell characterized the issue as a training issue blown out of proportion. And Royal said a mistake in a search warrant sparked the IA investigation, and that no misconduct was found.
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But seven months later — with Mackey continuing to act as lead investigator in new criminal case filings — the questions continue to percolate.
In one case, a motion alleging "outrageous government conduct" asserts Mackey has been "vigorously discredited" by nine fellow deputies for "his ongoing dishonesty, incompetence and lack of integrity."
"It has been alleged by the officers that this deputy has been dishonest in search warrant affidavits and reports arising out of car stops," attorney Erica Treeby wrote in a motion to dismiss the case involving her client, Scott Denty. "At least six prior cases involving dishonesty are specified. One officer requested transfer … because he believes his career will be infected by this deputy's malfeasance."
According to Treeby's motion, outrageous government conduct requires the dismissal of pending charges against her client, in order to "protect judicial integrity and deter future government misconduct."
Royal continues to defend Mackey, however, saying Friday that issues were raised, but that "no intentional violation" of policies was found.
Royal characterized the legal proceedings as a futile attempt to paint Mackey as a "Brady officer," meaning that his testimony in criminal cases will always be called into question.
"That's not going to happen," Royal said.
"It's the game we have to go through with the defense bar," he added. "They try to throw fuel on the flame … We get Pitchess motions (a request for information contained in a law enforcement officer's personnel file) all the time. They're going to use every tool in the toolbox to discredit our officers."
Royal said he is prohibited by law from discussing any specific allegations that might have been made against Mackey.
"I wish we could throw it all out there, but we can't — but with that said, we found no wrongdoing," he added.
Documents requested from DA's office
And in another case, set for a Tuesday hearing, attorney Heather Burke has filed motions to force the release of documents relating to Mackey.
Burke cites the internal affairs investigation, and alleges that the complaints were from numerous other sheriff's deputies and that then-Assistant District Attorney Glenn Jennings initiated his own investigation.
In her motion, Burke writes that she has been informed that at some point Newell mandated that Jennings immediately halt his investigation.
"When (Jennings) refused, he was forced to resign rather than violate his constitutional duty to disclose the clearly exculpatory evidence," Burke said.
Burke further alleged that Newell has been in possession of the substance of the complaints against Mackey, but has never disclosed that information.
Burke also subpoenaed records from the DA's office, listing Newell and investigator Randall Billingsley.
Newell bristled over Burke's subpoenas, saying he was seeking to quash them because she used an improper tactic — but that he is striving for transparency nonetheless.
"We're throwing everything against the wall," he said, adding that he hopes to have the court determine once and for all if the information on Mackey is indeed "Brady" evidence — meaning evidence or information that would prove the innocence of the defendant or impeach the credibility of government witnesses.
"This has been going on ad nauseam," he said. "I'm hoping on Tuesday that we can apply what the judge determines across the board in all (of Mackey's) cases."
Newell said that he is bound by the same process as defense attorneys when it comes to accessing personnel information and is required to file Pitchess motions as well.
"There are some allegations I am hiding personnel file information, which I just don't have," he said.
Newell agrees that his office had an obligation to disclose any potential Brady information, but added, "We're caught in a place where we have to balance our ethical obligations with the officer's right to privacy — and we do that whole-heartedly and freely. We don't try to find niches in the law (to hide information). We want it out in court."
Newell addressed Burke's statements that former ADA Jennings began an investigation, but was shut down.
"He did no investigation," Newell said. "He sat in on a couple of interviews with a couple of officers."
Those interviews were turned over to the Sheriff's Office, Newell said.
Newell said the information garnered during those interviews was not Brady material, calling it "speculative" and "rumor and innuendo."
"It's not our job to investigate IA issues," Newell said. "When we become aware (of issues), we turn it over, which we did, immediately. And my staff attorneys were all instructed to disclose that (information).
"I have no qualms about Jason Mackey," Newell continued. "He's a good officer, he's diligent, he learns well. We're still taking cases where he's the primary (investigator)."
Newell did say that subsequent to the launching of the internal affairs investigation, special procedures were put in place for reviewing Jason Mackey's search warrants.
"I was reviewing all his warrants," Newell said. "I had no problems — the only one I had a problem with was the Bell warrant" — the warrant with the self-reported address error that sparked the IA investigation.
According to Newell, Mackey was being required "for a very short period" of time to come in with another deputy to corroborate his warrants.
Royal confirmed that Mackey had undergone what he characterized as additional training.
"We looked at the totality of the situation and we felt that some additional training would be beneficial, and we took steps to do that," he said.
The fact that Mackey's warrants needed to be corroborated should have been noted in those warrants — and that constitutes a material omission, Burke charged.
"If these numerous complaints, each and every one of them coming from other law enforcement officers, amount to a simple need for more training, then the fact that Deputy Mackey needed to be baby-sat is a material omission that affects all of his warrants," Burke said. "And if it's a material omission, then it is Brady. I cannot fathom why the Sheriff's Office put this embattled officer in charge of the warrants for 2016 as well, now placing all of those cases in jeopardy. This is truly incredible."
To contact City Editor Liz Kellar, email email@example.com or call 530-477-4229.