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Wednesday, March 12, 2008

County Vows Full and Thorough Investigation


The Vanguard spoke briefly yesterday with both Yolo County Supervisor Helen Thomson and Yolo County Supervisor Matt Rexroad regarding Senior Investigator to the District Attorney Rick Gore's letter. Neither could speak about this matter as it is a personnel matter. However, I was able to confirm that there would be a thorough independent investigation into the accusations of wrongdoing leveled at District Attorney Jeff Reisig. Supervisor Rexroad would only state that they will "fully and completely investigate it."

The news coverage of this has so far focused on charges and counter-charges. The District Attorney and his office has tossed aside these allegations and spun them onto former candidate for DA and former Deputy DA Pat Lenzi.

District Attorney Jeff Reisig in his statement to the Davis Enterprise called the allegations "false and reckless." He also vowed to be fully cooperative.
"On March 6, 2008, the Yolo County District Attorney's office received notice that former candidate for the office of District Attorney, Patricia Lenzi, and current District Attorney Investigator, Rick Gore, have accused several currently employed prosecutors and investigators, including the District Attorney, of committing unethical acts.

'On behalf of the entire office, including the prosecutors and investigators targeted by these accusations, I deny these false and reckless allegations. I have requested an independent investigation, will be fully cooperative and look forward to the results."
There has been very little talk about the substance of these allegations. Of particular note is history that suggests at least the plausibility of at least one of the charges.

Rick Gore in his letter, accused the District Attorney of attempting to "hide and conceal discoverable evidence about a material witness."

He writes:
"One major disagreement you and I had was when you tried to hide and conceal discoverable evidence about a material witness and refused to discover evidence during an on-going murder trial.


Bruce Naliboff told me, in front of you, to "put a muzzle" on Randy Skaggs for talking about this discovery issue. You and I had extensive email discussion about this. Lt. Skaggs was in the office when Dave Henderson had to order you to comply with the law and therefore discover the evidence. I am sure the date of the gun test and the date of discovery of the report will show the long delay in providing this evidence, shooting and gun test, to the defense."
While District Attorney Reisig denies these allegations as "reckless" and "false," he has had a conviction reversed in part previously for failure to turn over exculpatory evidence.

In early 2007, the Vanguard received court documents about a 1999 case where Reisig had a verdict overturned for failure to disclose exculpatory evidence.

The following is excerpted from the January 17, 2007 Vanguard article:

In 1999, a jury found a Woodland man guilty of using a firearm in the commission of an a threat to commit great bodily harm. The man was sentenced to five years in prison but had that sentence suspended and was placed on probation under a variety of conditions including that he serve 250 days in the county jail.

However, the defendant challenged that sentence on the basis that the prosecution knowingly withheld material exculpatory evidence. Mr. Reisig's defense was that this was inadvertent.

The basic problem was that in this case, the victim never saw a gun when the defendant threatened to shoot her and yet the prosecutors sought a firearm enhancement charge. The jury during the court proceedings twice sent notes to the court concerning the question as to whether the object was actually a firearm (a necessary conditions of this enhancement is that the object actually be a firearm).

One of the key questions that arose after the trial by the jury was whether or not a vehicle had been searched for the gun in question. This only surfaced after the trial in an inadvertent conversation between a juror and Mr Reisig. The juror asked him if the car had ever been searched and Mr. Reisig said that he believed so. The defense attorney came out about the same time and heard that the car had been searched and no gun had been found.

It turns out that the vehicle had indeed been searched and that no gun was found. This information never made it to the jury during the trial. Nor was it given to the defense.

Based on this new evidence, the defense requested a new trial on the grounds of newly discovered evidence and prosecutorial misconduct--the withholding of exculpatory evidence. The trial judge denied this motion arguing that there was no probability that the jury would have come to a different result "even if this additional information had been presented."

This decision was appealed and the appellate court overturned the ruling and the conviction.

According to the law, the prosecution must disclose evidence favorable to the accused regardless of whether or not the defendant specially requests the evidence.

Moreover, the evidence must specifically be material to case--in the sense that its suppression potentially changes the outcome of the trial. In this case, the victim never saw a gun but only an object and at least one of the jurors questioned whether even the current evidence was sufficient to prove to prove that the defendant actually possessed a gun (a necessary condition for the enhancement).

The judge ruled that "the duty to disclose this evidence was the exclusive responsibility of the prosecution..., whose failure to do so violated defendant's right to due process of law."

"In sum, the prosecutor violated defendant's right to due process by failing to disclose to the defense the existence of material exculpatory evidence pertaining to the issue of whether defendant used a firearm while threatening to shoot the victim."

The judge ordered that the firearm enhancement was to be reversed and a new trial. The prosecution then dropped the firearm charge at the subsequent trial and the defendant was given probation.

This case also came up in a May 31, 2006 Davis Enterprise article following accusations against Pat Lenzi:
"Woodland attorney Larry Cobb described Lenzi as "up front and candid." He said that was not his experience with Reisig several years ago, during a trial in which the defendant was accused of threatening a nightclub bouncer while holding a gun.

According to Cobb, the jury began its deliberations believing police had not searched the defendant's car for gun. The jury convicted the defendant, and while speaking with the jury afterward, Cobb said he overheard Reisig tell jurors there was a vehicle search during which no gun was found. Cobb says he believes Reisig knew that information, potentially favorable toward his client, before the jury received the case.

The case went before the 3rd District Court of Appeal, which Cobb said ordered a new trial on the gun enhancement. The charge was never refiled.

Reisig disputes Cobb's version of events, calling it "outrageous." He said the jury never received information about a vehicle search, though a police officer mentioned while the jury was deliberating the case that police had searched a car and the area around it, but found no weapon.

The appellate court ruling, Reisig said, reflected the court's opinion that the jury was entitled to hear information about the car search in case it would have affected the verdict. He added that there was no finding of intentional misconduct or hiding of evidence, and he declined to refile the gun charge because the defendant was performing well on probation.

"It wasn't the best use of resources to proceed with a new trial for the use of the gun," he said."
While this prior case does not prove that Reisig acted wrongly in the incident referenced in Rick Gore's letter, it does suggest that we need to further scrutinize these allegations because Mr. Reisig does have a history here.

Again, it is our hope that this is investigated fairly and equitably.

In the meantime, Rick Gore would seemingly be protected by California's Whistleblower Protection Laws.

The pertinent California Labor Code Section is 1102.5 where the employer cannot make rules preventing the disclosure of information nor can they retaliate against an employee for disclosing such information.

Section 1103 of the code states, "Any employer who violates this chapter is guilty of a misdemeanor ..." Furthermore, Mr. Reisig would be the responsible party here. "The employer is responsible for the acts of his managers, officers, agents, and employees" (Section 1104). Finally, Section 1106 extends the definition of employee to include among other things, county employees.

---Doug Paul Davis reporting