By Matt Coker
By R. Scott Moxley
By Charles Lam
By Nick Schou
By Gustavo Arellano
By Gustavo Arellano
By Steve Lowery
By R. Scott Moxley
What a prosecutor presented to a jury last week as an open-and-shut residential-burglary case suddenly ended three days later with the matter dismissed after a defense lawyer claimed previously undisclosed police evidence proved a sheriff’s deputy had been “dishonest and underhanded.”
Lewis R. Rosenblum, a former high-ranking Orange County prosecutor, represented Michael Wesley Baker, a 27-year-old South County construction-business owner who’d been arrested Aug. 21 after he took “two or three steps” inside the open garage attached to a Laguna Niguel residence. Court records show that the homeowner, Danny D. Moorhouse, a captain with the Santa Ana Fire Department, walked into the garage, saw Baker, restrained him without resistance and called 911. During the five-minute wait for deputies, Baker—who hadn’t stolen anything—explained that he thought that a friend lived at the residence and was seeking help because his Toyota Avalon had run out of gas a block away.
“I apologized, and I said, ‘If your story pans out, I will be the first one to apologize,’” Moorhouse recalled telling Baker at the time, according to a preliminary-hearing transcript. “But I didn’t believe his story.”
Neither did the cops. When Orange County Sheriff’s Department (OCSD) deputies Michelle Rodriguez and Brad Carrington arrived, Baker repeated his story. But he nevertheless found himself arrested and thrown into the Orange County Jail.
During testimony, Brian Gurwitz, Rosenblum’s co-counsel, asked Rodriguez if the officers had done “anything to check” the truthfulness of Baker’s out-of-gas story before making the arrest.
“No, sir,” replied the deputy, according to court records.
Gurwitz then asked her if, as a cop preparing to file criminal charges against Baker, she’d want to know if he’d lied about a key detail.
“We didn’t think of it at the time, sir,” Rodriguez said.
Twice—once in November and again on Feb. 4—during trial, but outside the presence of the jury, Deputy District Attorney Michael Carroll asked Carrington if he attempted to check out Baker’s story by starting the car. Twice, the deputy denied taking such action.
Suspicious, Gurwitz asked Rodriguez if deputies are required to videotape such arrests. She said yes. It was, according to the deputy, department policy.
Superior Court Judge John Conley then ordered Carrington to produce the video, and after a trip to the sheriff’s office, he returned with the patrol-car recording. (Even a rookie officer knows the government’s evidence is supposed to be shared with the defense prior to a trial.)
Outside the presence of jurors, the defense and Carroll reviewed the video. According to Rosenblum, on the recording, Carrington can be seen doing what he denied doing: checking to see if Baker’s vehicle could start. It wouldn’t. But that fact was not included in any OCSD report.
“Not only does the video show Carrington trying to start the car, but you can also hear that the engine won’t turn over, and the deputy says, ‘It won’t start. It’s either out of gas, or the battery is dead,’” according to Rosenblum. “Then when the tow-truck driver arrives, you can hear the deputy tell him, ‘It won’t start.’ I don’t believe he forgot that fact. I believe he purposely omitted it, and we would have never known if we hadn’t presented a vigorous defense.”
The video was a case-ending bombshell. Conley’s official notes reflect what happened next: “The People are prepared to dismiss the case due to the new discovery. Motion granted.”
In January, I reported that the DA’s office was forced to dismiss serious drug charges in a 2009 Anaheim case after Deputy Christopher Catalano testified that he had not threatened to fabricate evidence against the suspect prior to obtaining a confession. A tape surfaced at a preliminary hearing that proved otherwise (see “I’ll Make Somethin’ Up,” Jan. 8). And last year, District Attorney Tony Rackauckas accused several deputies of sabotaging an excessive-force prosecution of a fellow deputy (see “Rackauckas Doesn’t Blink,” May 15, 2009). Other deputies have recently been charged with or convicted of such misdeeds as falsifying reports, covering up an illegal lobster-poaching scheme, raping prostitutes and molesting children.
“Obviously, we’ll want to take a look at this,” said McDonald. “If somebody is lying in court, we’d definitely want to know about it. I can assure you of that.”
Baker’s lawyer called OCSD tactics “very, very disappointing.”
“In their attempts to convict this man, the deputies made statements that weren’t true, wrote inaccurate reports and did not disclose evidence we were entitled to prior to trial,” said Rosenblum, who won State Prosecutor of the Year honors from his peers in 1998.