Neither Side Happy with the Judge’s Lack of Clarity and Apparent Unannounced Changes to Key Ruling –
Judge Gaard is now ordering that the DA’s office turn over a cell phone whose data is sought by Deputy Public Defender Dean Johansson to the defense, but said that it can be viewed only at the DA’s office. This angered Mr. Johansson, who believed that the previous order was to turn over the phone so that an expert could examine it in his lab.
This angered Deputy DA Ann Hurd, who was standing in for Deputy DA Sarah Jacobsen while the latter was on vacation. Ms. Hurd had believed there was no such stipulation by the Judge, and she has now indicated that the DA’s office will file a writ to appeal to the State 3rd District Court of Appeals.
Oscar Arreola is currently out of custody, accused of raping his former girlfriend.
Previously, 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.
Or so it seemed. At a hearing on April 18, 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 explained that this would give the defense the ability to analyze the phone without the DA investigator being present.
When the defense objected to the arrangement, Judge Gaard asked on what authority the defense was basing their objection.
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 is 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.
Mr. 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.”
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 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.”
It is now clear that Judge Gaard is all over the place in her direction to both sides. Her original ruling was that the People did not have a valid reason for objecting to the defense request.
When the People failed to comply with that ruling, she held over the matter to order the People to show cause.
Instead of holding that matter over, however, she wrote a new order that she apparently believed was consistent with the previous order. She ordered the phone turned over and to be viewed at the DA’s office.
However, with the defense objecting, she added the stipulation that access be unfettered and be with no DA or investigator present.
This was unacceptable to the DA’s office. However, unlike Sara Jacobson who simply told the Judge they would not comply with the order, Ann Hurd is moving the matter to the appellate court where the matter will get sorted out.
Judge Gaard has now placed the matter back on the calendar for May 16, barring additional direction from the court of appeals on May 12. A Pitchess motion regarding defense access to law enforcement personnel records in this matter will be heard on May 18.
—David M. Greenwald reporting