The Third District Court of Appeal has denied the writ filed by the California Attorney General’s Office on behalf of the Yolo County District Attorney’s office, appealing the decision by Judge Gaard ordering the phone sought by the defense to be viewed with unfettered access in the DA’s office today, May 16.
Defense Attorney, Dean Johansson from the Public Defender’s office had believed that the previous order was to turn over the phone so that an expert could examine it in his lab. Mr. Johansson may himself file a writ arguing that the defense is entitled to the evidence as a matter of law.
Ms. Hurd had believed there was no such stipulation in the written order by the Judge, and indicated that the DA’s office would file a writ to appeal to the State 3rd District Court of Appeals.
The people, represented by the Attorney General’s office now, argue that the defense “has no right to an independent examination of the cell phone.”
They cited a controlling authority in which the court ruled that “the defendant has no right to obtain the evidence collected by the prosecution, to destroy that evidence in independent testing, and then to withhold from the prosecution the results of the testing.”
“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 Attorney General’s office maintains that the trial court’s order was both “an abuse of discretion” and “in excess of the court’s jurisdiction.”
However, the appellate court, without explaining their reasoning, apparently disagreed and denied the motion.
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.
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.
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 moved the matter to the appellate court for the matter to be sorted out.
The original orders are for the defense to view the phone today at the DA’s office, however, there may be additional legal arguments against that made by the defense, who still believes they have the right to this evidence as a matter of law.
A Pitchess motion regarding defense access to law enforcement personnel records in this matter will be heard on May 18.
—David M. Greenwald reporting
Based on this article, it sounds like the DA pretty much got what it wanted – the cell phone is to be viewed at the DA’s office, so the chain of custody is not broken, unless I am missing something here…
My understanding is that the DA does not get to be there when the defense’s expert looks at the phone. If that is so, then I think that neither the DA or the Defense got what they wanted.
Is that right David?
I agree with FAI. Neither party appears satisfied with the judge’s decision as it now stands.
Do you know anything about the judge’s rationale for providing a piece of evidence to the defense with no oversight, David, particularly if the DA hasn’t completed his own forensic analysis?
On the other hand, why would the defense agree “to waive any chain of custody objection” if the CoC wouldn’t be broken by the defense expert’s testing if done in the DA’s office?
It appears the DA’s folks are concerned that the defense could “change” the phone in some way if they get possession without being observed by authorities. I wonder why the DA’s experts can’t do everything with the phone that the defense experts can.[quote]”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….It is now clear that Judge Gaard is all over the place in her direction to both sides….”[/quote]This characterization of the judge seems excessive and inappropriate. This kind of legal maneuvering–and kicking the issue up the line–isn’t that uncommon and hardly ever results in contempt penalties.
“Do you know anything about the judge’s rationale for providing a piece of evidence to the defense with no oversight, David, particularly if the DA hasn’t completed his own forensic analysis? “
The strange part of this is that the answer to whether the DA has completed his own forensic analysis depends on who you ask.
This issue has been going on for more than a month, which is more than enough time for the DA’s office to “preserve” the evidence. I’m not buying the DA’s argument. It sounds to me like they just don’t want to give the phone to the defense. And that’s it.
[quote]My understanding is that the DA does not get to be there when the defense’s expert looks at the phone. If that is so, then I think that neither the DA or the Defense got what they wanted.[/quote]
As you can see, the chain of custody is not going to be broken, which was the DA’s contention all along. The DA may not have gotten everything they wanted (someone from the DA’s Office looking over the defense’s shoulder), but in essence the issue was chain of custody and the DA’s Office was correct on that point…