Deputy Jason Mackey returns to witness stand in marijuana case | TheUnion.com

Deputy Jason Mackey returns to witness stand in marijuana case

Deputy Jason Mackey testified Friday that he saw marijuana during a 2015 surveillance flight and took pictures of it — a clarification that prosecutors hope will lead a judge to reconsider his decision that the deputy lied on a search warrant.

Mackey, whose honesty became an issue during a contentious district attorney's race, testified Friday that he saw marijuana with his naked eye and through a camera lens. The former Narcotics Task Force member photographed six hoop houses during that flight, and later confirmed the presence of cannabis when viewing his pictures.

"Through the lens, I was able to see marijuana under cultivation," Mackey said. "Marijuana has a very specific emerald-green color when viewed from the air. They're oftentimes planted in a specific manner."

The testimony about photos taken during the surveillance differed from what Mackey told the judge in an April hearing. At that earlier hearing Mackey, discussing two photos attached to his search warrant, didn't say those pictures showed the grow's location only.

That omission became key to the ruling calling Mackey's statements false and misleading.

The photos attached to the search warrant show no marijuana. Language in the affidavit indicates that the attached photos do, in fact, show pot.

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"Those six lines, I would have worded differently," Mackey said of the affidavit. "At this point and time, I was still relatively new at writing search warrants."

Decision

Nevada County Superior Court Judge Robert Tice-Raskin issued no decision after Friday's hearing about Mackey's truthfulness. A decision — both about Mackey and whether the judge has jurisdiction to decide the issue — likely is over a week away.

The decision likely won't affect two misdemeanor marijuana cases from which the truthfulness issue stems. A May 1 ruling that called Mackey's statements misleading and false keeps evidence from reaching a jury. Assistant District Attorney Chris Walsh has said he'd dismiss those cases.

The May 1 ruling halted the prosecution of the two men. However, it also ruled against defense attorneys who sought to show outrageous governmental conduct.

Walsh has said he wants the judge to reverse his decision about Mackey's truthfulness, arguing that the photos with the affidavit intended to show the grow's location, not marijuana itself. Walsh claims that a judge calling Mackey dishonest will follow the deputy throughout his career. The prosecutor's push for a new decision led to Friday's hearing.

Questions

Under questioning by defense attorney Stephen Munkelt, who represents one of the men facing a misdemeanor marijuana accusation, Mackey called the hoop houses translucent. The cover dims the color of plants.

Sgt. Justin Martin, Mackey's superior at the Narcotics Task Force, told the judge that after looking at the photos he felt comfortable saying marijuana was grown at the site.

"Marijuana has such a distinct color about it," he added.

In a rare move, Walsh testified from the witness stand about the timing of his motion asking the judge to reconsider.

Walsh filed that motion some two months after the judge's May 1 ruling. The prosecutor said Mackey was on medical leave, and the prosecutor wanted to examine the digital photos once he'd returned.

Arguing his case, Walsh told the judge he had the authority to keep the ruling in favor of the marijuana defendants intact and tweak language impugning Mackey.

"This issue, we don't feel had been fleshed out at the prior hearing," Walsh said.

Defense attorney Heather Burke said the judge has no power to alter the ruling, saying Walsh was citing the wrong law.

Munkelt argued that attorneys on both sides had their chance to present evidence, which occurred, and that the judge reached a decision. Walsh failed to have Mackey give more detail about his photographs.

"He didn't do that," Munkelt added. "And now he's asking the court to do it for him anyway. It wouldn't be right."

To contact Staff Writer Alan Riquelmy, email ariquelmy@theunion.com or call 530-477-4239.

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