A Look At Prosecutorial Misconduct in Yolo County – Part Two

NCIP-Report.pngOn Monday, the Vanguard presented the Innocence Project’s report that flagged over 700 cases statewide.  On October 5, 2010, the Northern California Innocence Project came out with a report, “Preventable Error: A Report on Prosecutorial Misconduct in California 1997–2009,” that uncovered over 700 cases in which courts had found prosecutorial misconduct during an 11-year period.  Of all of those cases, only six prosecutors were disciplined.

The misconduct covered in the report ranged from failing to turn over evidence to presenting false evidence in court.  As a response to their research, the Northern California Innocence Project is calling for legal reforms requiring courts to report all findings of misconduct to the State Bar, which they currently are not required to do.  When a court decides the misconduct was harmless, those cases often go unreported.

The Vanguard has found four cases in Yolo County: Racimo, Lindeman, Massey, and Morales.  However a source indicates a fifth case might be added, which would be the case of Lawrence James Miranda, which  was overturned because the prosecutor, then-Deputy DA Jeff Reisig, withheld exculpatory evidence and the conviction was reversed on appeal.

On Monday we focused on the overall findings by the Innocence Project, and today we will detail primarily those five cases that have been identified.  We are also looking into the possibility of some other cases as well.

In their study, the Innocence Project distinguishes those cases in which the error was “harmful” – that is, that something was done that was so fundamental that it altered the fairness of the case and forced the verdict to be set aside or the declaration of a mistrial.

However, even in cases where the errors were found to be “harmless,” the Innocence Project study argued that “harmless error cases may have involved infractions just as serious — and in some cases identical to” those in harmful error cases.

They argue further, “the egregiousness of a prosecutor’s misconduct does not determine the harmfulness of the error; the issue for harmless error review is whether despite the misconduct, the defendant received a fair trial. That means that very serious misconduct can be deemed harmless.”

They argued that appellate courts use a rather liberal application of the “harmless error” doctrine employed in the appellate review of misconduct.

They write, “Applying the harmless error doctrine, an appellate court may affirm a conviction even where prosecutorial misconduct or other errors occurred, if it believes that the error did not affect the outcome of the case.  Only 20 percent of the prosecutorial misconduct cases were able to surmount this high hurdle. While this doctrine was originally intended to eliminate the need for multiple retrials for small technical mistakes, it has evolved to the point that it is now applied even to constitutional violations.”

Calixto Racimo

Calixto Racimo has now twice been convicted for his role in the 2002 murder in Clarksburg. 

According to the court records, “On August 24, 2002, a man’s body was found floating in a slough, just south of Winchester Lake, in the southeast part of Yolo County, near Clarksburg. The body was decomposed. Strapped to it was a backpack containing a lump of concrete weighing about 60 pounds.”

“The autopsy revealed the man was killed by four .22-caliber, copper-washed bullets shot into his chest,” the court continues. The body was indentified as that of Chris Pearson.

On November 4, 2002, Mr. Racimo was the second person arrested in connection with Pearson’s murder. It appears that Mr. Racimo did not actually commit the murder, but rather helped to cover it up, or at least that was charge.

In his closing argument in the first trial, Mr. Gorman said to the jury, “Now you were given the instruction on principals. You might be thinking, well, what if … what if [Nguyen] shot Chris Pearson and then got ahold of [defendant]. Because on [defendant’s] videotape, [he] says I’m the cleanup crew. Remember those words? I’m the cleanup crew.”

He continued, “So what if for a minute [Nguyen] shot Chris Pearson and then called his cleanup crew to get rid of the body? Well, that’s why we have the principals instruction. Just because somebody has been murdered, somebody who does that doesn’t want the body discovered. Because if you discover the body, you discover the murder. So the principals’ liability on a case like this doesn’t stop once Christopher Pearson’s heart stopped beating. Principals’ liability continues on for steps after the actual bullets into Christopher Pearson’s body. For instance, covering up a murder.”

Mr. Gorman then stated, “[Defense counsel] up here telling us there is zero evidence is quite frankly insulting. Let’s see, aiding and abetting defined. A person who aids and abets the commission of a crime when he or she [is] with knowledge of the unlawful purpose of the perpetrator.”

The jury during their two and a half days of deliberation asked for the legal definition of aiding and abetting.

The jury was given the following written version of CALJIC No. 3.01: “A person aids and abets the commission of a crime when he or she: (1) With knowledge of the unlawful purpose of the perpetrator, and (2) With the intent or purpose of committing or encouraging or facilitating the commission of the crime, and (3) By act or advice aids, promotes, encourages or instigates the commission of the crime .[P] A person who aids and abets the commission of a crime need not be present at the scene of the crime. [P] Mere presence at the scene of the crime which does not itself assist the commission of the crime does not amount to aiding and abetting.  [P] Mere knowledge that a crime is being committed and the failure to prevent it does not amount to aiding and abetting.”

According to the appellate court, “Defendant contends, inter alia, the prosecutor committed prejudicial misconduct in misstating the law of aiding and abetting in closing argument. He argues the assertion he was guilty of murder as an aider or abettor if his only involvement in the crime was help in disposing of the body after death is a misstatement of law.”

They continue, “Defendant submits the error was prejudicial because it invited the jury to return a guilty verdict without finding proof of the elements of the murder offense.”

While the Attorney General’s Office conceded the error, they argued it was harmless because the instructions on aiding and abetting were such that “any reasonable juror would undoubtedly have understood that [defendant] could not be found to have aided and abetted Pearson’s murder if his only involvement was the disposal of Pearson’s body.”

The appellate court ruled, “Defendant’s contention has merit and we shall reverse the conviction.”

They reasoned, “The prosecutor’s initial remark directly suggested that the duration of commission of the crime extended beyond the death of the victim. His closing remark quoted, in part, the instruction, implying that his misstatement of the law was not inconsistent with it. Moreover, the jurors expressly asked for “additional clarification” of aiding and abetting, suggesting they may have been struggling with this very issue.”

They further reasoned, “In light of all of these circumstances, we conclude there is a reasonable likelihood that the jury construed or applied the prosecutor’s remarks misstating the law of aiding and abetting in an objectionable fashion. Assuming that the least arduous standard of prejudice applies, in our opinion, after an examination of the entire cause, including the evidence, it is reasonably probable that a result more favorable to defendant would have been reached in the absence of this error.”

That is not the end of the case however.  After Mr. Racimo was convicted a second time, in February of 2008, his attorney Public Defender Richard Van Zandt argued that the Prosecutor failed to turn over evidence that was exculpatory.

Writes Mr. Van Zandt in his motion for a new trial, “Unbeknownst to Mr. Racimo or his attorney, Yolo County Deputy Public Defender Richard Van Zandt, Yolo County Sheriff Deputies Sgt. Rich Williams and Rich Johnson interviewed [a witness] Rodricks on July 7, 2004. Also present were Rodricks’ attorney, Donald Etra, and Yolo County Deputy District Attorney Robert Gorman, who had been prosecuting the case since it was first charged in October, 2002. The interview took place at the Sheriffs Department and was videotaped. Deputies Williams and Johnson are visible on the tape. Mr.Gorman can be heard at one part.”

He continued, “During this interview, Mr. Rodricks made several admissions, including some that contradicted earlier statements in the interview.”

Furthermore, “Neither July 7 videotape nor any part of Mr. Rodrick’s statements were disclosed to the defendant. Defense counsel for Mr. Racimo would personally find both July 7 tapes during a search of the evidence locker, observed by now-Detective Rich Johnson during Mr. Racimo’s second trial, three and half years later, in 2007.”

Mr. Van Zandt argues that “The prosecution’s duty to disclose extends to all evidence that reasonably appears favorable to the accused, not merely to that evidence which appears likely to affect the verdict.”

There are three elements to show a Brady violation.  First, the evidence must be favorable to the accused, either because it is exculpatory or is impeachment material.  Second, it must have been suppressed by the state.  And third, prejudice must result from the failure to disclose the evidence.

Mr. Van Zandt argued that this was a Brady violation even though he discovered it during the second trial.  The court disagreed here and refused to throw out the conviction.  Mr. Van Zandt told the Vanguard that there is a reason why they have timelines for the discovery process and having all available material allows the defense to properly research and prepare for a case.  Moreover, the prosecution held this evidence throughout a full trial and a half.

Luke Lindeman

In January of 2003, Luke Lindeman  was charged with grand theft for shoplifting a banjo and some music books from a music store. He pled not guilty, by reason of insanity. In August 2003, based on the opinions of two out of three psychiatrists, the trial court found him guilty, found he was insane at the time of the offense and ordered him committed to Napa State Hospital for three years.

On appeal, Mr. Lindeman contended: “(1) there was insufficient evidence to support the jury’s findings; (2) the trial court erred in failing to instruct the jury that it also had to decide whether he suffered from a mental disorder that caused him to have serious difficulty controlling his dangerous behavior; and (3) the prosecutor committed misconduct in closing argument by telling the jury the consequences of their findings and arguing it would be good for defendant to lose his case.”

The appellate court disagreed with each of these contentions.

However they still found for prosecutorial misconduct here.

The appellate court wrote, “We conclude the evidence – the testimony of a single psychologist – was sufficient to support the jury’s findings; however, the trial court erred in failing to instruct the jury that it had to decide whether defendant’s mental disorder caused him to have serious difficulty controlling his dangerous behavior.”

“We also conclude the instructional error was not harmless beyond a reasonable doubt. Accordingly, defendant is entitled to a new recommitment trial,” they added.

They further suggested, “For guidance on remand, we also address defendant’s claim of prosecutorial misconduct and conclude the prosecutor’s argument was improper because whether it would be to defendant’s benefit to stay in the hospital and continue receiving treatment is irrelevant to the determination the jury is called on to make under section 1026.5(b), and argument regarding the benefits of treatment has the potential to cause the jurors to lose sight of their true charge.”

Wrote the court in addressing the misconduct charge, they cited Mr. Lindeman’s argument that the prosecutor committed misconduct by telling the jury the consequences of their findings and arguing it would be good for defendant to lose his case.

In closing argument, “the prosecutor asserted (without objection) that defendant’s ‘decreased impulse control’ was strong evidence … that he needs to stay at Napa State Hospital to continue to get treatment.””

The prosecutor had argued, “So the condition that brought him to Napa State Hospital is still apparent and has gone untreated. And that is really the bottom line. And that’s why he needs to stay at Napa State Hospital.”

“And that’s all you’re being asked to do, make a decision whether or not you believe he should stay, because he has a mental defect that presents a dangerousness to other people,” the prosecutor continued.  “This is really a win-win situation. It’s not if I win, [defendant] loses. That’s not the situation here. If [defendant] stays at the hospital, it’s really a win-win situation for him….”

At that point, defense counsel, Public Defender Jessie Morris, offered an unspecified objection that the Judge overruled.

The appellate court argued that while no cases directly address the point, “they do tend to support the proposition that in a commitment case like this it is improper to focus the jury’s attention (whether by jury instruction or introduction of evidence) on what the results of its decision will be.”

Wrote the court, “because the prosecutor’s comments about treatment and its benefits had the potential, however small, to cause the jurors to lose sight of the specific issues they were to called on to decide – whether defendant had a mental disorder as a result of which he represented a substantial danger of physical harm to others (and had serious difficulty in controlling his dangerous behavior) – and to focus instead on their belief of what would be best for him, those comments were improper and should be avoided in the future.”

Byron Massey

In May 2003 the prosecution filed a petition to commit defendant to the California Department of Mental Health (Department) under the Sexually Violent Predator Act. The matter went to trial in December 2003, during which the parties stipulated that defendant had been convicted of sexually violent offenses against two or more victims.

According to the court records, his first predicate offense occurred in November 1985 when defendant forcibly raped 14-year-old R., the babysitter his then-girlfriend had hired to care for her two children. He was sentenced to prison for six years.

His subsequent predicate offenses occurred throughout 1993 after he encountered 13-year-old A., the daughter of his ex-wife, at a local mall. During that year, defendant forcibly kissed A. and touched her private parts, forced her to orally copulate him, and digitally penetrated her vagina, all while threatening that he had “bad pictures” of her mother that he would disseminate if she did not cooperate. He pled guilty to two counts of oral copulation and three counts of lewd and lascivious acts on a minor and was sentenced to 19 years in prison.

A jury found that defendant Byron Scott Massey is a sexually violent predator (SVP), and he was committed to the custody of the California Department of Mental Health for two years pursuant to the Sexually Violent Predators Act (SVPA).

However, on appeal, defendant raises the following four arguments: (1) the court erred in compelling him to testify, in violation of his Fifth Amendment privilege against self-incrimination; (2) the prosecution committed misconduct when it asked him if the victims had been lying; (3) the court erred in failing to instruct the jury that it must determine whether defendant’s custody in a secure facility was necessary to ensure he was not a danger to the health and safety of others; and (4) the court erred in instructing the jury on the meaning of “likely,” in violation of his rights to due process and equal protection of the law.

According to the court, “Over defendant’s objection that his compelled testimony violated his right under the Fifth and Fourteenth Amendments to remain silent, the court allowed the prosecution to call defendant as a witness.”

Furthermore, “On appeal, defendant contends that his involuntary testimony violated his Fifth Amendment privilege against self-incrimination because there was no guarantee he would not be prosecuted for perjury based on his testimony.”

“The Supreme Court has declared the SVPA to be civil in nature because the legislative intent is treatment rather than punishment,” the appellate court ruled. “The Supreme Court denied review in Leonard, and defendant does not provide any cogent reason for us to depart from our previous analysis. We thus reject his argument.”

Antonio Morales

Jesus Alderete was stabbed to death during a gang-related fight in a Woodland alley in the early morning hours of September 11, 2003. Woodland police arrested and questioned defendants Antonio Loredo Morales and Juan Carlos Montoya the following day.

The jury convicted Montoya of first-degree murder and found true the allegations he committed the crime for the benefit of a criminal street gang and personally used a deadly weapon.  The court sentenced Montoya to life without the possibility of parole.

The jury found Morales not guilty of first-degree murder in count 1, but convicted him of the lesser-included offense of second-degree murder. It found the section 186.22(b)(4) gang enhancement to be true and the weapon use enhancement not true.

The court sentenced Morales to 15 years to life for second degree murder in count 1, plus a concurrent term of 15 years to life for the section 186.22(b)(4) gang enhancement attached to count 1.

According to the appellate court, Montoya argued: “(1) there is insufficient evidence to support a finding of premeditation and deliberation in count 1; (2) there is insufficient evidence to support the gang enhancement, the substantive gang charge and the special circumstance gang finding (ss 186.22, subds.(a) and (b)(4); 190.2, subd. (a)(22)); (3) the California death penalty law violates the Eighth Amendment of the United States Constitution; (4) the court should have stayed the two-year consecutive sentence in count 2 pursuant to section 654; (5) the court erred in refusing to instruct with CALJIC No. 4.21 on voluntary intoxication; and (6) the prosecutor’s misconduct violated Montoya’s constitutional rights to due process, confrontation, and a fair trial.”

Wrote the court, “Morales joins Montoya as to arguments 2, 4, and 6. He also contends: (1) there is insufficient evidence to support the jury’s true finding on the gang enhancement under section 186.22, subdivision (b)(4) because he was not convicted of one of the enumerated offenses required by that statute; (2) we must strike the concurrent sentence imposed for the section 186.22, subdivision (b)(4) enhancement for the same reason; and (3) the court denied him his rights under Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403] when it sentenced him to the upper term for his conviction in count 2.”

The court modified “the judgments as to both defendants by vacating the jury’s true findings on the section 186.22, subdivision (b)(4) enhancement, striking the sentences on that enhancement, and staying the section 186.22, subdivision (a) sentence imposed in count 2. We affirm the judgments as modified.”

According to the appellate court the misconduct charge stems around the following:

First, “Morales’s sister Valeria Morales testified about a confrontation between Morales and three men, including Alderete, a few months before Alderete was killed.  Valeria talked her brother into leaving the scene. She also testified that the hot dog vendor told her that Alderete was the man who stabbed Montoya in 2002.”

They continued, “On cross-examination, the prosecutor started to ask Valeria Morales about a misdemeanor conviction. Morales’s counsel objected that the prosecutor “was not going to be allowed to go into this….” Defense counsel also complained that the prosecutor had placed seven or eight files on the “edge of the table closest to the jury” and thumbed through them as he started to question Valeria about her record. The court ruled the fact of that conviction admissible to impeach Valeria’s credibility. However, the court agreed with counsel that the prosecutor’s conduct was improper, stating: “You don’t want to create any misimpression with the jury that this or any witness may have a lengthy criminal record by showing a jury a number of files….” Montoya’s defense counsel moved for a mistrial. The court responded, “I don’t think it rises to that level. So I am going to deny your motion.”

The courts wrote that on appeal, “Montoya and Morales argue that the prosecutor’s misconduct violated their constitutional rights to due process, confrontation and a fair trial. They contend they were prejudiced because Valeria Morales’s ‘testimony supported the imperfect self-defense aspect of the defense case, inasmuch as both [defendants] would be expected to act more harshly when confronted by the deceased.’ ”

Wrote the court, “We agree with the trial court that although the prosecutor’s conduct was improper, it did not rise to the level of prosecutorial misconduct and require the court to declare a mistrial.”

They continued, ” ‘The applicable federal and state standards regarding prosecutorial misconduct are well established. A prosecutor’s … intemperate behavior violates the federal Constitution when it comprises a pattern of conduct “so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.” ‘ ”

Instead, they argued that in this case, “the prosecutor had reason to expect Valeria Morales to confirm that she had been convicted of making a criminal threat. Although the prosecutor first asked Valeria whether she had been in court before for her ‘own cases,’ the discussion that followed the defense objection focused on the single misdemeanor.”

Furthermore they argued, “There is no indication the jury noticed the files on the table between the time the prosecutor asked Valeria whether she had been in court before and the time the court sent the jury to lunch – less than half a page in the reporter’s transcript.”

They concluded, “The prosecutor’s single act of thumbing through a stack of case files did not constitute an egregious pattern of misconduct that violated defendants’ constitutional rights.”

Lawrence James Miranda

This is a case that we were told may be added to the Innocence Project List of Prosecutorial Misconduct cases.

A jury found defendant Lawrence James Miranda guilty of threatening to commit a crime which would result in death or great bodily injury and found he personally used a firearm in the commission of that offense.

According to the appellate court, “The victim saw the grip of the object outside defendant’s pants pocket and saw the shape of a barrel under the fabric of the pants pocket as defendant pointed the object toward her. From its appearance, and defendant’s threat to shoot her, the victim believed the object was a gun. However, when defendant and the other suspects were searched approximately two hours later, no gun was found. Nor was any gun found in the hotel room where the suspects were discovered. Likewise, a search of the area around the hotel revealed no gun. Officers also searched a barn several miles away, based upon Corrina Guavara’s statement that she had driven there with defendant, Carillo, and Avila after the three men had left Judy’s Bar. No gun was found in the barn. According to Officer Puffer’s testimony, the red car belonging to one of the suspects was found but, “to [Puffer’s] knowledge, it was never searched.”

During summation, the prosecutor, Jeff Reisig, then Deputy District Attorney, argued that the officers’ failure to find a gun did not help defendant: “[T]hat’s not decisive of the charges here, because we have a witness [Leslie] who saw [a gun]. [and defendant and the others] had two hours to dispose of evidence . “

The key point is here, “Twice during deliberations, the jury sent notes to the court concerning the question of whether the object in defendant’s pants pocket was a firearm.”

After the verdicts were recorded and the jury was discharged, the prosecutor spoke with jurors outside the courtroom. The prosecutor and defense counsel had differing accounts of what happened next.

In the words of the prosecutor, Jeff Reisig: “While I spoke with the jury, [defense counsel] exited the courtroom and approached. As he approached, one of the jurors asked me if the red car had ever been searched. I responded that ‘I believed’ it had been searched by another police officer. My response was based on my assumption that with the number of police officers at the scene it would have been highly unlikely that no one searched the car. [Defense counsel] arrived at my location just as I made the above statement.”

Defense counsel Lawrence Cobb of course described it differently: “I left the courtroom to speak with the jury members who had remained. [The prosecutor] was already there speaking with some of the members of the jury, and from the content of the discussion it was apparent that he had been so engaged for some time.”

He continued, “I began speaking with [jurors] as well. asking questions about what was and what was not convincing evidence in their minds. While so speaking with the jury members, [the prosecutor] turned to me, and in a causal [sic] manner, told me, in substance, that he had received information that the car had been searched but no gun was found and that, apparently, Officer Puffer, was not aware that such a search of the car had been conducted. No other information was given to me nor did [the prosecutor] tell me when or how he had learned of such information.”

Believing that the prosecutor had withheld exculpatory evidence, defense counsel made “an Informal Request for Discovery .” and received two supplemental reports, each of which stated that Officer Scoggins searched Avila’s car after the suspects were detained, and found no gun in the vehicle.

Based upon this new information, defense counsel moved for a new trial on the grounds of newly-discovered evidence and prosecutorial misconduct (withholding exculpatory evidence) which had a bearing on the finding that defendant used a firearm while violating section 422.

Defense counsel argued: “[T]he fact that the car had been searched and no weapon found was highly exculpatory and, coupled with the testimony of [the victim] regarding the alleged gun, as well as the testimony of [the DJ and bar owner] that they never saw a gun, it is reasonably probable that the jury would have found doubt and brought in a not true finding on the enhancement.”

The trial court denied the motion, stating: “I do not find that there is any probability that the jury would have come to a different result regarding the firearm enhancement, even if this additional information had been presented.”

However, the appellate court disagreed.

They wrote, “Without doubt, the presence or absence of a gun in defendant’s possession following the threat was material to the question whether the object in his pocket was a gun or whether he just simulated one. The evidence showed that, when defendant and his two companions were detained two hours later, searches revealed there was no gun on their persons, in the hotel room where they were found, in the area surrounding the hotel, or in a barn where they went after defendant had threatened the victim. This left three possibilities: the gun was left in the car; the gun was disposed of elsewhere; or there was no actual gun.”

They continued, “Certainly, jurors could infer Officer Puffer would have known about it if the car had been searched. Thus, Puffer’s testimony that, to his knowledge, the suspect vehicle was “never searched” tended to provide one reason for the void: the missing gun was left in the car. We find it quite conceivable that the jurors may have been influenced by this implication.”

Furthermore, “If the jurors were told during the trial that the suspect vehicle had been searched and no gun was found, this would have eliminated a convenient and logical explanation for the absence of a gun.”

They wrote, “Hence, our confidence in the verdict on the use enhancement is undermined by the prosecution’s failure to disclose this material exculpatory evidence to the defense.”

They ruled, “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. Accordingly, the trial court erred in refusing to grant defendant’s motion for a new trial on that issue, and the use of a firearm enhancement must be reversed.”

The story was captured in a 2006 Davis Enterprise article.

Wrote the Enterprise, “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.”

According to the Enterprise, Mr. Reisig disputes Cobb’s version of events, calling it “outrageous.” They wrote, “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 story continued, “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,” Jeff Reisig told the Enterprise during the heat of the 2006 District Attorney race against his colleague Pat Lenzi.

A Sixth Case?

The question is whether there are more cases.  One case we are looking closely at is the Halloween Homicide case, in which DA Investigators Rick Gore and Randy Skaggs have alleged the DA withheld gun test evidence favorable to the defense.

Rick Gore, in his March 2008 letter to DA Jeff Reisig, wrote, “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.”

He continued, “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 a followup to the letter, Mr. Gore added, “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.”

This charge is bolstered by the claims of Randy Skaggs, a ten-year-veteran DA Investigator who alleged that he was retaliated against for whistleblowing on the DA’s Office.

Mr. Skaggs has filed a lawsuit in which he alleges that this discipline was retaliation for disclosure of exculpatory evidence.  It says, “The Defendant[s] 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.”

In September of 2008, Mr. Skaggs 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 other Chief District Attorney Investigators.

The suit alleges, “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.

The suit further claims, “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 [were] 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.”

According to those involved, the information would have damaged the credibility of a critical prosecution’s witness.  We are still examining at this point whether an appellate court ruled on it and we also looking into the overall case based on information that the three individuals ultimately convicted for this crime may not have been the actual perpetrators.

—David M. Greenwald reporting

About The Author

David Greenwald is the founder, editor, and executive director of the Davis Vanguard. He founded the Vanguard in 2006. David Greenwald moved to Davis in 1996 to attend Graduate School at UC Davis in Political Science. He lives in South Davis with his wife Cecilia Escamilla Greenwald and three children.

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  1. Phil Coleman

    The “Preventable Error” study has been joined and selectively compared with the “Judicial Watch” efforts in this forum. This article exhaustively describes specific cases that comports to match the “errors” of the larger study.

    Comparing the two critical prosecutor studies one step further, how did the Preventable Error report judge the quality of prosecution in Yolo County? Realizing that the study dates vary somewhat, were there any DA abuse cases cited in both examinations?

  2. kathryndruliner

    Watch the Artz case. I filed a Motion for New Trial with numerous allegations of prosecutorial misconduct. This is just unbelievable. I will submit this to the Innocence Project.

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