Exactly two weeks ago today, Judge Janet Gaard of the Yolo County Superior Court was to hear the case of People vs. Oscar Arreola in her courtroom, Department 8, at 9 am.
Ms. Jacobsen informed Judge Gaard that while she understood the order, “I have still been informed by my supervisor that we will not be turning the phone over.”
Having no other choice, Judge Gaard, who has a reputation for being “too nice,” was forced to order her to show cause, with the probability of sanctions for contempt of court.
The current hearing, then, was to see what the consequences would be for the DA in defying Judge Gaard’s order.
From the beginning, something seemed amiss. At 9 am, a note on the door of Department 8 stated that the morning’s hearings were postponed by one and a half hours, now to begin at 10:30 am. At 10:30 am, with the courtroom full of people for all the cases to be heard that morning, instead of Judge Gaard as expected, there appeared retired Judge Arvid Johnson.
Defense Counsel Dean Johansson explained to the Judge that the hearing was set to show cause and to determine if sanctions were to be placed on the prosecutor for refusing to follow Judge Gaard’s order. Immediately, Judge Johnson, while looking down at the case file, stated that he was not in a position to apply any sanctions whatsoever.
Deputy DA Jacobsen spoke up and brought to Mr. Johansson’s attention another more recent document in the case file that was a court order signed by Judge Gaard, contradicting the previous order and allowing the DA to keep custody of the phone.
Filed on April 13, it ordered the People “to make available defendant Oscar Arreola’s cellular telephone for defendant’s expert’s inspection on April 18, at 9 am in Department 8.” It also allowed the people to request additional time during the hearing to comply. According to the order, however, the defense could only view it at the District Attorney’s office.
Mr. Johansson, apparently, had not been served a copy of this document and seemed surprised, stating that this was the first he knew of it. Ms. Jacobsen was apparently already aware of it and sheepishly pointed out that this order was the most recent, and so superseded any previous order.
Judge Gaard, it was said, would be gone all week, a fact that she neglected to mention when she put this on calendar.
Mr. Johansson scheduled another hearing for the next morning, and then another Order to Show Cause hearing for May 3 at 9 am, in an effort to get the Judge to explain on the record what had happened.
The Vanguard has acquired the transcripts from the previous hearings that demonstrate the chain of events that led to this strange outcome.
On March 18, the District Attorney’s office filed a motion in opposition to the defense’s motion to compel discovery of the cell phone in question. According to the DA, they offered to allow the defense to inspect the cell phone with a DA Investigator at the meeting, “The Defense responded by stating they wanted to have ‘unfettered access’ to the evidence and did not want a District Attorney investigator ‘lording over him.’ “
The Defense was concerned that a forensic expert would not merely be able to examine a cell phone in a conference room and would need access to tools and other technology in order to thoroughly and properly examine the evidence.
The DA expressed concern that the “cell phone had not yet been forensically analyzed and cell phones can lose data very easily.” They added that their high tech team discovered that the cell phone had a password and they were unable to “retrieve any messages” so they requested that the Defense provide the password to the cell phone.
As Mr. Johansson explained in court on March 25, to Judge Gaard, they found it unacceptable that the DA investigator would be looking over their investigator’s shoulder while observing the evidence. He offered instead to videotape the examination.
The DA’s continued insistence over the course of the March 25 and April 5 hearings was that the phone had to stay in the custody of the DA’s office to maintain the “chain of custody.”
The defense retained an expert to examine the phone “because the DA would not allow [the public defender’s] investigator to look at the phone without their investigator observing his movements and his analyst’s analyzing of the phone.”
On April 13, Judge Gaard had ruled that the People had a reasonable opportunity to “copy or otherwise memorialize the contents of the phone.” She ruled, “Given the fact that the prosecution has had the ability to analyze the phone, in light of the qualifications of the expert who will analyze it for the defense and the defense’s agreement to waive any chain of custody objection, the People don’t have a valid reason for objecting to the defense request.”
Ms. Jacobsen had responded, “To be clear, we’re not objecting to it. We’re saying we’re not going to turn it over unless somebody can be present to ensure that nothing is destroyed.
Judge Gaard responded, “You’re saying that, and I just told you that that’s not going to happen.”
Ms. Jacobsen responded that she needed another court date since she was told “we will not comply with that order.”
Judge Gaard responded, “Maybe you would like to get someone over here this morning to tell me why you’re not going to comply with the court order.”
They would come back at 10 am on the 13th of April, and after some legal arguments by the People attempting to justify their position using case law, Judge Gaard ruled that the authorities presented by the People do not change the court’s ruling from this morning. Ms. Jacobsen was asked by Judge Gaard how long do they need before turning over the phone.
Ms. Jacobsen responded that she understood the court’s ruling, however, “I have still been informed by my supervisor that we will not be turning the phone over.”
The hearing was then set as an order to show cause. Judge Gaard told the attorneys that the hearing was “for the People to be present with the phone.”
However, as we now know that did not happen on Monday. Instead, the order that came from Judge Gaard’s office, apparently that same day, was one in which the defense’s expert would inspect the phone “on the premises of the Yolo County District Attorney’s office on April 18, 2011.”
What happened? Why was the defense never sent the order? Why did Judge Gaard suddenly take a week off when she never indicated that this was her intention? Perhaps some of these questions will be answered on Tuesday May 3.
—David M. Greenwald reporting