‘I’ll Make Somethin’ Up’
OC sheriff’s deputy tanked Disneyland-adjacent drug case by threatening to fabricate evidence
Let’s assume an Orange County Sheriff’s Department (OCSD) report of the Nov. 8, 2007, arrest of a suspected drug dealer near Disneyland reflects reality. The report goes like this: At 3:15 p.m., an undercover narcotics unit led by Investigator Christopher M. Catalano decided to end surveillance on 58-year-old Danny Stephen Simmons. A husky, 22-year veteran, Catalano ordered a patrol unit driven by Deputy Gino Rodriguez to stop a 2007 Dodge truck driven by Simmons on Harbor Boulevard.
To officers’ frustration, a passenger holding a McDonald’s bag leaped from the still-moving Dodge, dumped the bag (which contained 3 ounces of methamphetamine and a glass pipe), climbed a fence and, despite Catalano’s chase, escaped. Meanwhile, Rodriguez halted Simmons at gunpoint and found half a gram of methamphetamine hidden underneath the driver’s-seat cover, plus 17 Vicodin pills in the vehicle’s center console. Deputies raided Simmons’ home; there, they say, they found 171 grams of marijuana and the tools of a drug dealer: small plastic bags, digital scales, a box of syringes, $3,300 in cash and a loaded handgun. Catalano reported that Simmons voluntarily confessed to selling drugs. Based on the investigator’s work, prosecutors filed seven felonies and two misdemeanors. The district attorney’s office thought the crimes merited an eight-year trip to a California penitentiary.
But Simmons didn’t spend one hour in prison. Indeed, his case never went to trial—because the sheriff’s report was not entirely truthful and the preliminary hearing testimony of deputies wasn’t especially credible. As a result, the DA’s office dismissed five of the most serious charges. Last year, Simmons pleaded guilty to two remaining counts: illegal possession of a handgun by a felon and possession of an amount of concentrated cannabis. His punishment? Ninety days of home confinement, a generous resolution for a man the OCSD had pegged as a drug dealer working on the outskirts of the Happiest Place on Earth.
How did this happen? The answer is found in the transcript of the preliminary hearing—which features the closest thing to a Perry Mason moment you’re likely to see in a real-life courtroom.
The courtroom in question was that of Sarah S. Jones, who worked as an intern in the Orange County DA’s office while she attended USC law school and later joined the office as a prosecutor. She left to represent State Farm and Pacific Mutual Life Insurance. In 1985, Republican Governor George Deukmejian appointed her to the Orange County bench.
At Simmons’ preliminary hearing on Feb. 24, 2009, Claudia Alvarez, a veteran prosecutor and Democratic Santa Ana city councilwoman, represented the DA’s office, while defense duties landed on Case Barnett, a relative newcomer to the legal scene.
Barnett works for the public defender’s office, but he isn’t just another PD. His father, John, is among the elite of California’s criminal-defense bar. Cops—the people who know firsthand the importance of superb legal representation—often turn to John Barnett when they’re accused of wrongdoing. The gorgeous house in Laguna Beach atop a hill with sweeping views of the Pacific Ocean is one testament to how well the elder Barnett knows his trade.
The Simmons case proves the Barnett pedigree lives on. Alvarez called Catalano as her first witness, and the deputy gave confident answers about the arrest. To Barnett’s questions, however, the investigator repeatedly responded with phrases such as “I can’t say for sure,” “I don’t remember exactly,” “I don’t know,” “I might have,” “I can’t remember” and “I can’t say for sure either way,” according to the court transcript.
Barnett got Catalano to claim his report was accurate, that he was the lead investigator, and that only he questioned Simmons at the scene while Rodriguez stood nearby. But most important—and over Alvarez’s strenuous objections—the public defender got the investigator to say, “I never threatened [Simmons] at any point.” One of Simmons’ front teeth had somehow been knocked out during the arrest.
When it was his turn to testify, Rodriguez also asserted to Barnett that no one but Catalano had questioned Simmons.
“You didn’t make anything up about Mr. Simmons that pertains to this case, did you?” Barnett asked.
“No, sir,” Rodriguez fired back.
Jones conducted a sidebar conference.
“What are you doing?” she asked Barnett, according to the transcript. The public defender explained he’d been provided an officer-made audio recording from the arrest scene and wanted to play it in court.
“Why?” the judge asked.
“For impeachment,” said Barnett.
“The People object,” said Alvarez, who fired off six objections including “It will take undue time.”
“Is there an objection to my looking at [a transcript of the audio] right now?” the judge inquired.
“Yes, your honor,” said Alvarez.
“To my even looking at it?” the judge replied.
“It is statements that are going to be presented to the court that will influence the court’s decision,” the prosecutor said.
After a recess, Jones continued to wonder aloud why she should care about the audio. Barnett re-explained that the recorded statements destroyed the credibility of Catalano’s claim that Simmons hadn’t been illegally coerced to confess.
“We don’t have to listen to it, do we?” the judge asked before allowing Barnett to ask Rodriguez “a few questions” about the recording.
Over Alvarez’s continued objections, Barnett fired off this question: “Do you recall telling Mr. Simmons, ‘Fucking asshole, if there’s any chance of you workin’ with us, I’ll go fuckin’ take you right to county [jail], and you’ll go to prison ’cause you’re gonna go to prison in this case. I’ll make somethin’ up’?”
Before Rodriguez could answer, Alvarez interrupted to argue the question was unfair. Jones ordered the deputy to answer. “No, I did not,” Rodriguez said.
Barnett re-called Catalano and asked him a single question: Had he threatened to fabricate evidence prior to Simmons waiving his constitutional right to remain silent.
“I don’t remember saying that, no,” said the investigator.
Jones excused Catalano from the witness stand. Barnett told the judge that the audio was powerful evidence one of the deputies “is lying.” He wanted the court to hear the 13-minute recording, but Jones said no. She said she thought it would be a waste of her time. A relieved Alvarez called the audio “a charade” because the deputies had no reason to cheat. Jones cut off discussion and ruled the government’s case legitimate.
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Though Jones wasn’t disturbed by evidence of law-enforcement corruption, the audio revelation wrecked the case. I obtained through California’s open-records law District Attorney Tony Rackauckas’ May 11, 2009, letter to Sheriff Sandra Hutchens, which detailed the impact of the fabrication threat and, based on an interview with a top-ranking OCSD official, identified Catalano as the likely culprit. “Since an officer threatened that Simmons was going to prison and that he would ‘make somethin’ up,’ a court could reasonably find Simmons’ statement was a product of this threat,” wrote the DA, who also noted the public’s confidence in the sheriff’s department would erode if the incident became known beyond the two law-enforcement shops. The DA apparently never received a reply from Hutchens and was forced to drop all of the charges that relied on the investigator’s word. (An OCSD spokesman told me, “We have not yet found anybody who received or acted on [the DA’s letter].”) To avoid an embarrassing trial, prosecutors cut the sweetheart deal with Simmons—who insisted all along he hadn’t been dealing drugs.
It’s unknown what, if any, punishment Hutchens ordered. California’s politicians have drifted toward a police state by banning the public from knowing if a cop has been disciplined for misconduct. However, this much is known: Two months after the threat revelation, Hutchens held a ceremony at the Hyatt Regency Irvine to give Rodriguez and Catalano medals for “courage” after the deputies reported they disarmed a Costa Mesa drug dealer on the same day they took down Simmons.
The sheriff, who has promised to restore deputy accountability in the wake of the Mike Carona corruption scandals, refused to be interviewed for this story. Her command staff and media-affairs team repeatedly blocked my attempts to reach Catalano for comment.