She indicated that they needed more analysis and thus more time to pursue the case. So rather than put the matter on hold as Judge Gaard suggested, she dropped the charges.
The move caught everyone involved off guard and they could only speculate the motivation as to whether the DA was hoping the matter would go before a different judge who would rule differently on the evidence or whether the DA was trying to buy time in order to be able to preserve evidence.
This followed a ruling late last week by the Third District Court of Appeals that denied a writ filed by the Attorney General’s office at the behest of the DA’s office.
The people have cited chain of custody issues, as well as conflicting orders by Judge Gaard. They have consistently argued that the defense “has no right to an independent examination of the cell phone.”
However, both Judge Gaard and now the appellate court have ruled against them. The defense believes there is something on that phone that the DA’s office does not want them to get ahold of.
“Had the Superior Court simply allowed a representative from the. District Attorney’s office to be present during the examination-as the Superior Court originally ordered on March 25, 2011,” the writ argues, “these concerns would have been eliminated, along with any concerns relating to the District Attorney’s duty to maintain the chain of custody of the cell phone.”
They continue, “But the Superior Court did not do so and instead chose to compromise by ordering the examination to take place at the District Attorney’s office.”
They add, “However, this does not lessen the concern because the Superior Court ordered the expert’s examination to be private, without any personnel from the District Attorney’s office present. Thus, the District Attorney is in no better a position of protecting the integrity of the data on the cell phone than they would be if the examination were to take place at the expert’s own office.”
The question is whether this is simply a smokescreen.
Already this case was questionable when the victim, who alleged Mr. Arreola, her former boyfriend, raped her, acknowledged that they had sex multiple times following the alleged rape, including the week of the rape.
The victim at that time also revealed there were additional text conversations between her and the defendant. This is at the heart of the battle now.
The case caught our attention when Deputy DA Sara Jacobsen defied an order by Judge Gaard to turn over evidence to the defense.
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.”
However, just as it appeared that Judge Gaard would order the DA to show cause or face contempt, everything changed.
At a hearing on April 18 with Judge Gaard unexpectedly absent, a court order that lacked a proof of service and was never sent to the public defender’s office, suddenly appeared in the file. It appeared to contradict the previous order and to allow 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.” However, the defense could only view the phone “on the premises of the Yolo County District Attorney’s office on April 18, 2011.”
Judge Gaard, the following week, explained that this would have given the defense the ability to analyze the phone without the DA investigator being present.
The defense maintains they have the right to inspect evidence, unfettered by the DA’s office looking over their shoulder. Moreover, Mr. Johansson argued it was unreasonable to require his expert to bring all of his equipment down from his office in El Dorado county and inspect the phone in the DA’s office.
Meanwhile, Ann Hurd argued that they were ready to comply with the order that they had seen on April 18. However, she argued that there was nothing in that order that indicated the defense would be physically testing the phone or that the tests would be out of their presence.
Judge Gaard clarified the order, that it was to be on the premises of the DA’s office, but no DA was to be present.
Ann Hurd replied that if that is the court’s order, they will ask for a delay until May 12, to file a writ to the court of appeals.
Deputy Public Defender Dean Johansson objected that, for the second time, the DA’s office is refusing the court’s order.
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.”
Due to the dismissal, the hearing for the Pitchess motion, regarding officer personnel records, was not heard either.
—David M. Greenwald reporting