DA Defies Judge’s Order and Judge Backs Down

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Yolo-Count-Court-Room-600Exactly 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.

The case, in which Mr. Arreola is charged by the District Attorney with rape after his former girlfriend accused him of raping her, had already been through a preliminary hearing and subsequent hearings by that time.  However, this hearing was to be unlike any of the others.

 

In the previous hearing, Judge Gaard had ordered the DA to turn over Mr. Arreola’s cell phone to the Defense.  In response, the prosecutor in the case, Deputy DA Sara Jacobsen, had said to Judge Gaard on the record and in open court that the DA would not comply with that court order.

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

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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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25 thoughts on “DA Defies Judge’s Order and Judge Backs Down”

  1. Tecnichick

    I dont understand why they are arguing over the phone in the first placec when both side can subpeona the text transcripts straight from the cell phone company.

    I undertand that the main subject here is the DA defying the judge’s order and getting away with it. That does not surprise me at all. How can Yolo uphold that fact that someone is innocent until proven guilty if all of the judges are former prosecutors? That seems so biased right there. Rosenberg and Riesig are both part of the same “good ol’ boys” club.

  2. E Roberts Musser

    Hmmmmmmmmmm… not sure about this one. Interesting situation. On the one hand the DA asked the defense for the password, and was refused. (I assume the defendant did not want to incriminate himself.) On the face of it, it would seem reasonable the DA would not want any data lost from the phone if it were turned over to the defense. And a chain of custody must be maintained, and I don’t know if a waiver by defense is sufficient. What else I don’t know is how difficult it is to retrieve data from a cell phone w/o the password. It will be interesting to see what happens on May 3rd…

  3. David M. Greenwald

    They were not refused the password, they were given it.

    You’re missing the point Elaine, the Judge ordered the DA to turn over the phone and the DA refused. Then when the judge ordered the DA to show cause, she suddenly went on vacation for a week, a different order appeared that was not filed in the normal manner, and we are now where we are. Something very fishy happened. Maybe we’ll find out tomorrow.

  4. Superfluous Man

    Technichick,

    You assume a judge who was once a prosecutor cannot perforn his or her judocial duties with objectivity. Are judges who once defended alleged criminals predisposed to believe the defendant is innocent? Is that problematic as well?

    You also erroneously claim that “all” superior court judges in YC are former prosecutors, when that’s not true. To my knowledge, two were, which is not the majority.

  5. David M. Greenwald

    Mock and Richardson were prosecutors. Rosenberg was not. However, Gaard was with the Attorney General’s office which makes her a former prosecutor. Judge Lebov who is retired was a former prosecutor who was considered very fair to defendants. I can’t find Fall’s biography, but I thought he was as well.

  6. Superfluous Man

    warriner was a prosecutor? Where and when? Gaard worked for the AG, but doing what exactly. I don’t know if working for the AG as an attorney classifies one as a prosecutor.Was she prosecuting cases? My understanding is that she worked with or as an advocate for victims. Am I wrong? Nevertheless, the majority of judges are not former prosecutors, much less “all.”

  7. E Roberts Musser

    dmg: “That’s why Elaine’s comment misses the point,the DA argued the exact same point that she did, but the Judge ruled against that and ordered something else, the DA then said they would not comply and then the Judge failed to hold them to her order.”

    I think you are missing my point. 1) Judges can make mistakes; 2) I’m not sure that a waiver of a defense is enough here to make it permissible to break the chain of custody; 3) I’m not willing to jump to any conclusions just yet; 4) I would guess the DA feels on pretty solid ground to go so far out on a limb as to ignore an express court order. So I’ll wait and see what transpires in court on May 3rd before I condemn anyone out of hand.

  8. David M. Greenwald

    Judges do make mistakes. But a judges order is still their order. The das office doesnt get to pick and choose which to comply with. They have recourse but within the law.

  9. Fight Against Injustice

    I think it would be very worthwhile to find out if Judge Gaard had planned on taking vacation time or not. Can someone check the Judges calendar? It seems like she had planned on being there for the hearing “to show cause.”

    The fact that Judge Gaard changed her decision regarding access to the phone and didn’t inform the defense about this change seems to be problematic. Judges are usually very good about keeping both sides equally informed.

    It would be interesting to see if Judge Gaard was pressured to be absent and/or pressured to reconsider her decision.

  10. Themis

    ERM -I think you are missing my point. 1) Judges can make mistakes;

    Unfortunately they don’t admit it when they do and the innocent pay a very steep price.

  11. Iyah

    I’m bothered that the DA or DDA refused to hand over evidence and refused to comply with the judges order. The DA has already been found to not have turned over exculpatory evidence in the past. This is a “Brady violation” and is serious issue. If the issue was chain of custody. Why can’t the DA’s office make a copy of the cell phone for themselves. After all they got that nice new high tech office right in their department.

    Something else that I find very disturbing is DDA Jacobsen’s comment about evidence possibly being destroyed. Is she alleging that the Defense attorney or their investigator might destroy evidence? That is pretty bold. Perhaps the defense is equally worried that the prosecutor’s investigator might destroy evidence. I think the best thing is to make a copy for each party to fully analyze at their own leisure.

  12. Iyah

    Let me add that I think the Judge should order the prosecutor and defense experts meet and together make the copies of the phone so that they can supervise each other to make sure they are both being complaint with the order. Then they can analyze the copies individually as each sees fit.

  13. Casey1060

    If judges orders are not followed, it goes against the reason for having them at all. I think it will be interesting to see about the judge’s calendar.

  14. E Roberts Musser

    dmg: “Judges do make mistakes. But a judges order is still their order. The das office doesnt get to pick and choose which to comply with. They have recourse but within the law.”

    From Black’s Law Dictionary: “Constructive (or indirect) contempts [of court] are those which arise from matters not occurring in or near the presence of the court, but which tend to obstruct or defeat the administration of justice, and the term is chiefly used with reference to the failure or refusal of a party to obey a LAWFUL order…of the court laying on him a duty of action or forbearance.”

    The key word here is LAWFUL ORDER. What we don’t know is if the judge’s order was LAWFUL.

    From Vakalisv Shawmut Corp. 925 F 2d 34: “Thus, a court may convict a person of contempt for disobeying a court order “even though the person believes in good faith that the court order is unlawful.” United States v. Underwood, 880 F.2d 612, 618 (1st Cir.1989). Only where the court lacked jurisdiction to make the order, or where the order was “TRANSPARENTLY INVALID,” can a party ignore a court order and then attempt to evade contempt sanctions by litigating the validity of the underlying order itself. Matter of Providence Journal, 820 F.2d at 1345.”

    From Black’s Law Dictionary: “Chain of Custody – …the one who offers real evidence…must account for the custody of the evidence from the moment in which it reaches his custody until the moment in which it is offered into evidence…”

  15. David M. Greenwald

    “The key word here is LAWFUL ORDER. What we don’t know is if the judge’s order was LAWFUL.”

    It was never argued that the order was unlawful. I suspect there is a way to properly handle that. I don’t think stating that you are ignoring the order or won’t comply is that way – do you?

  16. David M. Greenwald

    UPDATE: This morning the hearing was postponed until Friday due to the fact that Judge Gaard supposedly has jury duty today. Really?

    In any case, there was another surprise Mr. Arreola is out of custody. Apparently his uncle helped bail him out. That is important because one of the reasons that Mr. Johansson was under a lot of pressure was Mr. Arreola was in custody for three months and Mr. Johansson did not want to extent that time longer than he needed to.

  17. DarkAges

    E Roberts Musser:

    DMG is right that there was never any mention by the DA of the order being unlawful, though now that you’ve put the idea out there, who knows, they might try to argue it.

    To everyone:

    It is not believable that the DA is unable to access the text message data on the phone. They can get it from the phone company and in some cases even without a subpoena. The DA is not handing over the phone because they can sense that this case is slipping away from them quickly and they don’t know what else to do other than impede the defense.

    They sided with the accuser quickly, perhaps thinking of the another rape conviction for their stats, rather than gather information impartially with a view to getting at the truth. That shall be brought out as the case goes forward.

  18. Iyah

    Neither the DA’s office nor law enforcement (DA’s High Tech Unit) need to ask the phone company for records. They have the cell phone and can get the information directly off the phone. I agree that something else is going on here and I suspect they are trying to hide evidence from the defense.

  19. David M. Greenwald

    No it is the Judge’s order that is. The Judge had already ruled on the chain of custody and felt that the precautions and stipulations were sufficient by the defense.

  20. Roger Rabbit

    Even if the information is only on the phone, that information can be video taped or photographed, lots of ways to be fair and comply with discovery. As most know the DA does not care following laws, but loves to brag about how he locks others up for not following the law.

  21. debjeff051510

    And Now the case prosecutor dropped charges?????????? What is going on in Yolo County?????? Talk about a waste of taxpayers money. Not to mention breaking the law. I want to know who in the DA office is going to be held responsible for this?????

  22. Iyah

    Debjeff051510: Who should be held responsible for violating the law and wasting our tax dollars? The DA – Jeff Reisig or his head of Court Operations Steven Mount. But only by the community getting upset and demanding change and responsibility from our elected officials.

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