In September of 2008, Mr. Skaggs, a ten year veteran DA Investigator was placed on paid administrative leave pending the outcome of an administrative inquiry into allegations of misconduct. Details of the discipline case were then disclosed to Dave Markss, Chief DA Investigator for Colusa County’s DA’s Office who sent the details of the conversation to no less than thirteen other Chief District Attorney Investigators.
“Dave Markss then sent the details of the conversation to no less than thirteen other Chief District Attorney Investigators in California. He indicated in his email that he would provide further updates as they are received from MARTIN, indicating that there was an expectation of further dissemination of confidential information from SKAGGS personnel file.”
According to the suit, Mr. Martin also disclosed this private information to a member of the Davis Police Department.
“Plaintiff had a legitimate and reasonable expectation that his personal information 16 and his private and confidential personnel information would not be made accessible to members of other police departments and District Attorney’s Offices. Plaintiffs legitimate and reasonable expectation is further supported by the Information Practice Act of 1977, California Constitution, Article 1, Section 1, and California Penal Code § 832.7.”
From the public’s stand point the most interesting claim is the retaliation for whistle-blower activities as this gets to the heard of the issue.
“The Defendant have initiated retaliatory and frivolous administrative proceedings and actions against the Plaintiff, because he brought to the attention of the DA OFFICE, including the District Attorney, exculpatory evidence relating to other criminal investigations and prosecutions, and that thereafter the DA was forced to turn over evidence to defense counsel.”
According to the claim,
“Following these actions by the Plaintiff, the DA OFFICE began treating him selectively, placing him on administrative leave, proposing to terminate him from the department and initiating various administrative proceedings against him. These actions pretextual, wrongful and in violation of the public policies of the Untied States of America, and were in fact done to retaliate against Plaintiff, and in violation of his constitutional rights under 42 USC § 1983 II (Fourteenth Amendment) and other constitutional rights.”
Halloween Homicide Case
In a high-profile Yolo County case, three men were convicted in a October 31, 2002 double murder. Three men were sentenced to life in prison for their role in the double-killings, although the conviction of one of the men has come under some matter of questioning.
Reported the Woodland Daily Democrat in June of 2006:
“By all accounts, the most shocking verdict was for Olague, whose conviction was mostly based on circumstantial evidence.
His attorney, Dwight Samuel, said he was angry about the verdict and he plans to appeal.
“(Olague) had a very good opportunity for success in this case and I’m quite disappointed in the verdict,” Samuel said, “But we have the opportunity now to appeal because there was not sufficient evidence to convict him.” “
In March of 2008, Investigator Rick Gore made headlines in Yolo County when he sent a letter accusing Jeff Reisig and the Yolo County District Attorney’s Office of ethical malfeasance. One of the charges was that the District Attorney’s office withheld evidence of a gun flash test during the Halloween Homicide trial.
Mr. Gore wrote in his initial letter that was sent to District Attorney Jeff Reisig and reprinted in the local meeting:
“One major disagreement you and I had was when you tried to hide and conceal discoverable evidence about a material witness and refused to discover evidence during an on-going murder trial.
Bruce Naliboff told me, in front of you, to “put a muzzle” on Randy Skaggs for talking about this discovery issue. You and I had extensive email discussion about this. Lt. Skaggs was in the office when Dave Henderson had to order you to comply with the law and therefore discover the evidence. I am sure the date of the gun test and the date of discovery of the report will show the long delay in providing this evidence, shooting and gun test, to the defense.”
In his follow up, Mr. Gore wrote:
“Another shameful finding of the county is that Dave Henderson did in fact have to order Mr. Reisig to discover the gun flash test during the Halloween Homicide trial. Then the county made the finding that the test was not discovered because of my objections. In all my years, I have never had to go to the District Attorney because a Deputy DA was trying to withhold evidence from the court and the defense. The fact that this incident had to be elevated to the District Attorney, Dave Henderson, and he had to order Mr. Reisig to turn it over, is pretty good proof that this evidence was being concealed and was not going to be discovered without my objections.”
As the suit by Mr. Skaggs alleges:
[The defendants] have proposed to terminate him in retaliation for his actions which were in good faith. Claimant brought to the attention of the District Attorney at the time of the incident, the fact that Jeff Reisig failed to turn over exculpatory evidence that Claimant developed, to defense counsel. After Jeff Reisig was forced to turn the evidence over, the department began to treat Claimant selectively.
He has been placed on administrative leave pending the final hearing where the department has proposed to terminate him. This retaliation against him, as a “whistle-blower” has now ended in a baseless administrative and criminal investigation against him. Further, the actions of the County of Yolo and the Yolo County District Attorney’s Office are pretextual, wrongful, in violation of public policy of the United States of America and the State of California. These actions also violate the Constitution and laws of the United States and constitute a violation of 42 USC § 1983 and deprivation of the Claimant’s constitutional rights.
This has created a hostile working environment, embarrassment and humiliation that he has had to endure and will continue to endure when he attempts to find other employment.
History of Failure To Turn Over Exculpatory Evidence by Jeff Reisig
Mr. Reisig and his office have a history of failure to turn over evidence to the defense.
In early 2007, the Vanguard received court documents about a 1999 case where Mr. Reisig had a verdict overturned for failure to disclose exculpatory evidence.
In 1999, a jury found a Woodland man guilty of using a firearm in the commission of an a threat to commit great bodily harm. The man was sentenced to five years in prison but had that sentence suspended and was placed on probation under a variety of conditions including that he serve 250 days in the county jail.
However, the defendant challenged that sentence on the basis that the prosecution knowingly withheld material exculpatory evidence. Mr. Reisig’s defense was that this was inadvertent.
The basic problem was that in this case, the victim never saw a gun when the defendant threatened to shoot her and yet the prosecutors sought a firearm enhancement charge. The jury during the court proceedings twice sent notes to the court concerning the question as to whether the object was actually a firearm (a necessary conditions of this enhancement is that the object actually be a firearm).
One of the key questions that arose after the trial by the jury was whether or not a vehicle had been searched for the gun in question. This only surfaced after the trial in an inadvertent conversation between a juror and Mr Reisig. The juror asked him if the car had ever been searched and Mr. Reisig said that he believed so. The defense attorney came out about the same time and heard that the car had been searched and no gun had been found.
It turns out that the vehicle had indeed been searched and that no gun was found. This information never made it to the jury during the trial. Nor was it given to the defense.
Based on this new evidence, the defense requested a new trial on the grounds of newly discovered evidence and prosecutorial misconduct–the withholding of exculpatory evidence. The trial judge denied this motion arguing that there was no probability that the jury would have come to a different result “even if this additional information had been presented.”
This decision was appealed and the appellate court overturned the ruling and the conviction.
According to the law, the prosecution must disclose evidence favorable to the accused regardless of whether or not the defendant specially requests the evidence.
Moreover, the evidence must specifically be material to case–in the sense that its suppression potentially changes the outcome of the trial. In this case, the victim never saw a gun but only an object and at least one of the jurors questioned whether even the current evidence was sufficient to prove to prove that the defendant actually possessed a gun (a necessary condition for the enhancement).
The judge ruled that “the duty to disclose this evidence was the exclusive responsibility of the prosecution…, whose failure to do so violated defendant’s right to due process of law.”
“In sum, the prosecutor violated defendant’s right to due process by failing to disclose to the defense the existence of material exculpatory evidence pertaining to the issue of whether defendant used a firearm while threatening to shoot the victim.”
The judge ordered that the firearm enhancement was to be reversed and a new trial. The prosecution then dropped the firearm charge at the subsequent trial and the defendant was given probation.
This case also came up in a May 31, 2006 Davis Enterprise article:
According to [Woodland attorney Larry] Cobb, the jury began its deliberations believing police had not searched the defendant’s car for gun. The jury convicted the defendant, and while speaking with the jury afterward, Cobb said he overheard Reisig tell jurors there was a vehicle search during which no gun was found. Cobb says he believes Reisig knew that information, potentially favorable toward his client, before the jury received the case.
The case went before the 3rd District Court of Appeal, which Cobb said ordered a new trial on the gun enhancement. The charge was never refiled.
Reisig disputes Cobb’s version of events, calling it “outrageous.” He said the jury never received information about a vehicle search, though a police officer mentioned while the jury was deliberating the case that police had searched a car and the area around it, but found no weapon.
The appellate court ruling, Reisig said, reflected the court’s opinion that the jury was entitled to hear information about the car search in case it would have affected the verdict. He added that there was no finding of intentional misconduct or hiding of evidence, and he declined to refile the gun charge because the defendant was performing well on probation.
“It wasn’t the best use of resources to proceed with a new trial for the use of the gun,” he said.”
There are two key elements of this case. The first is the dissemination of the personal details of what should have been a confidential administrative process. The plaintiff is arguing that the effect of this public disclosure of private facts has “exceeded the scope of what would be reasonable to occur in the course and scope of his employment” and moreover, the effect of it will make “it impossible to seek employment in his desired profession, regardless of the outcome of the administrative or criminal cases.”
The second portion is that this administrative action was done in retaliation for his role in disclosing and reporting the failure to turn over evidence from the gun test that may have proved exculpatory in the Halloween homicide case.
These matters get to the heart not only of the way that this District Attorney conducts public policy, but also the manner in which employees are treated and in this case allegedly mistreated in the disclosure of evidence in the process of conducting criminal investigations for the purposes of prosecution.
—David M. Greenwald reporting