Prosecution, defense counsel spar over Brady evidence in narcotics cases involving Nevada County Sheriff’s Det. Jason Mackey | TheUnion.com

Prosecution, defense counsel spar over Brady evidence in narcotics cases involving Nevada County Sheriff’s Det. Jason Mackey

It might seem like a legal discussion of what constitutes Brady material — information that could prove the innocence of the defendant or impeach the credibility of government witnesses — might be of limited relevance to the real world.

But Brady evidence and the timing of its disclosure to defense counsel has been the linchpin for months in a heated legal dispute, in a number of drug cases involving embattled Nevada County Sheriff's Det. Jason Mackey.

Mackey, a member of the Nevada County Narcotics Task Force, has been under scrutiny for allegations of dishonesty dating back several years. He reportedly was cleared by the Sheriff's Office of any misconduct after a lengthy internal affairs investigation.

Documents pertaining to a DA's Office investigation of Mackey in June 2015, which were recently released to several defense attorneys, have only raised more questions.

What is at stake is the viability of a substantial chunk of the drug cases filed in Nevada County for the last two years.

One "Mackey" case, involving defendant Daniel Potter, recently resolved with a plea agreement that could net Potter 16 months in county jail followed by eight months of post-release community supervision. Potter pleaded no contest to a count of possessing a controlled substance for sale in each of his two cases, one of which allegedly placed him in possession of a half-pound of heroin, $26,000 in cash, seven bottles of suspected liquid methadone and morphine pills.

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Right now, there are six felony cases being litigated in court that have Pitchess motions (to access personnel information) or evidence discovery demands relating to Mackey, said Assistant District Attorney Joe Alexander.

Mackey's credibility could be in question with more than just those half-dozen criminal filings.

But just how many cases involving Mackey have been affected is difficult to quantify.

Of note is the marked jump in Pitchess motions filed in the last two years, with local defense attorney Stephen Munkelt noting that this was a legal maneuver rarely practiced in the past.

The Nevada County Sheriff's Office recorded four motions filed on its deputies in 2013, with one in 2014 and three in 2015. This year, there have been 12 Pitchess motions filed that involve its deputies. Staff were unable to specify which deputies were named in the motions, however.

The Grass Valley Police Department saw no Pitchess motions filed in 2015. This year, there have been two, both naming Officer Evan Butler, who serves on the narcotics task force, and both in connection to Mackey cases.

Nevada County Assistant District Attorney Joe Alexander said that his office currently has 75 filed felony drug cases. Of those, he estimated that Mackey played a "significant role" in 25-30, meaning he was the affiant on the search warrant affidavit or was the case agent.

With Mackey continuing to serve as the lead in warrant searches for the Narcotics Task Force, future filings could be vulnerable to similar legal challenges.

And that doesn't count any prior felony drug cases that resulted in convictions based on testimony from Mackey or where the search warrant was authored by Mackey.

Late disclosure of material an issue

Several defense attorneys have accused the DA's Office of improperly withholding the materials it acquired during the truncated investigation of Mackey by then-Assistant District Attorney Glenn Jennings in early 2015.

After attorney Heather Burke filed motions to force the release of documents relating to Mackey, and subpoenaed records from the DA's office, those records were released on Dec. 2.

In a hearing on Dec. 6, Burke told Superior Court Judge Robert Tice-Raskin that she has been seeking that information since January.

In April, Burke continued, District Attorney Cliff Newell had asked Tice-Raskin for a review to determine if a memo regarding Mackey was Brady material.

Tice-Raskin subsequently ordered the release of the memo — but no mention was made in court of the investigation documents.

At the time, Newell told the defense attorneys they would find the information that was being disclosed "woefully disappointing," Burke said, adding that it was Newell's non-compliance with his Brady obligations that was disappointing.

Burke argued that the late disclosure of what could be evidence favorable to the defense — in that it could serve to impeach the credibility of the testifying officer — could lead to dismissal of the case due to outrageous government misconduct.

Alexander, who replaced Jennings, has said that the complaints uncovered by Jennings "didn't rise to the level of criminal conduct" and did not constitute Brady material.

Burke said that the DA's office should be held accountable for the late disclosure, but Alexander argued late disclosure does not necessarily constitute a "Brady" violation.

And, he said, it had not even been determined by the court yet that the documents were exculpatory information.

"We do not skip past that determination and go straight to, how do we punish the prosecution," he said.

Who gets to decide?

Due process requires the disclosure to defense attorneys of Brady material. But in Mackey's case, the DA's Office has repeatedly stated they did not believe the information it had collected during its investigation in 2015 constituted Brady material.

The defense attorneys who received those documents disagree, with Stephen Munkelt writing a letter to DA Cliff Newell regarding what he perceived as an "incorrect standard for disclosure" regarding Mackey.

"The core duty to disclose is defined only by what is potentially favorable or exculpatory, without regard to how critical or trivial it may appear," he wrote.

In regard to the DA's Office investigation of Mackey in 2015, Munkelt said, "There can be no question the information that one officer thinks another officer lied in a sworn document is favorable to the defense. Therefore, it should have been disclosed long ago to attorneys in Mackey's cases."

The standard of materiality is typically defined as whether there was a reasonable probability that the result of the trial would have been different if the exculpatory material had been turned over before trial. But what is favorable to the accused, especially when it comes to impeaching the credibility of the witness, can become murky.

"In general, when you talk about Brady, what does that mean?" said Yuba County District Attorney Pat McGrath. "The prosecution has to disclose any information to the defense that is material — that's the key word — the type of evidence that could exonerate (the defendant) or might result in a lessening of the sentence."

For instance, McGrath said, if there was something in the background or behavior of the peace officer that would affect their credibility, such as lying on warrants.

The admissibility of Brady information is up to the judge, he added.

"It's not unusual for DA offices to have situations involving officers where something in the personnel file might be potentially Brady," McGrath said. "The prosecutor's challenge is evaluating that to see if it is Brady material."

That threshold is personal to the prosecutor handling the case, he said, adding, "They should err on the side of providing information."

There is no black and white answer to every Brady issue, McGrath said.

"You need to look at, is the information true?" McGrath said. "If it's not, what was the motivation? Is there an explanation? Is that explanation reasonable? Is it a training issue?

"It's like an onion — you peel away the layers," he added. "It's like a Rubik's cube. You work it until you reach a reasonable conclusion."

If the State Bar of California has its way, that decision could get a lot simpler.

Nevada City attorney Nanci Clinch has been working for more than two years to help the State Bar of California revise its rules of professional conduct, which ultimately must be approved by the state Supreme Court.

One of the rules involves special responsibilities of a prosecutor — and the commission proposing those rules has specifically added language that clarifies and expands timely disclosure of Brady information.

"The problem is, the way the system has been in the past is that the prosecutor decides materiality," Clinch said. "They should not be the ones to decide … because they want to put the defendant in jail."

Typically, an error will only be determined after trial and prosecutors rarely get even a slap on the hand, Clinch said.

The new proposed rule "puts into black and white the rules for full disclosure," she explained, adding that many prosecutors are in favor of the new language because it is more clear-cut, even if it does push them to err on the side of full disclosure.

The commission has been urged to fast-track that particular rule due to its importance, Clinch said.

She added the Board of Trustees of the State Bar of California adopted the commission's proposed rule and directed it be submitted to the Supreme Court of California with a request it be approved.

To contact City Editor Liz Kellar, email lkellar@theunion.com or call 530-477-4229.