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.
OCSD spokesman John McDonald said he wasn’t aware of the Baker burglary case and that neither Sheriff Sandra Hutchens nor the two deputies would be available for interviews.
“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.
MR. BOEING WENT TO WASHINGTON
He wails about wasteful federal spending every chance he gets, but Dana Rohrabacher—our notorious, two-faced congressman—isn’t anything if he isn’t shameless. The Huntington Beach/Long Beach Republican representative claims he’s pissed off with President Barack Obama, who recently asked to eliminate $2.5 billion in the 2011 budget for Boeing’s C-17 cargo aircraft.
According to Rohrabacher, building more C-17s is “essential” to America’s global military security and any reduction in funding would prove Obama is determined to “neuter” the nation’s ability to dominate conflicts around the world.
Rohrabacher, who avoided military service during the Vietnam War, is prone to empty political theatrics. In reality, Obama is asking for a $107 billion military budget. According to Business Week, that figure represents a whopping 50 percent increase in the Pentagon’s base budget since 2000.
But it wasn’t Obama, House Speaker Nancy Pelosi or any liberal who first proposed axing the new C-17 spending. It was—drum roll, please—all the mushy doves inside the Pentagon, including Defense Secretary Robert Gates, a conservative Republican first appointed to the office by George W. Bush. According to Gates and other Pentagon brass, they already have enough C-17s, at 223 of the aircraft. They argue that adding 10 more at a cost of $250 million each is a waste. For three years, the military has begged Congress to spend precious federal tax dollars on more critical military needs but has encountered unwavering political resistance.
Boeing has a plant in Rohrabacher’s district.
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SPITZER STOOD BY HIS TROUBLED MAN
Ex-OC assemblyman Todd Spitzer had plenty of opportunities to distance himself from Henry T. Nicholas III after the Broadcom Corp. co-founder was arrested on a variety of messy criminal charges, including narcotics and corporate cheating. But, though some fellow Republicans view him as a brazen opportunist, the former county supervisor, who currently works as a local prosecutor, stood by Nicholas. In fact, Spitzer—a likely future candidate for DA after Rackauckas retires—told me on several occasions over recent years that he believed Nicholas was innocent, and anyway, he would not abandon a friend in a time of crisis. Had the billionaire businessman been convicted, Spitzer’s image would have suffered. But U.S. District Judge Cormac Carney dropped all charges against a relieved Nicholas.
This column appeared in print as "More Empty Testimony: OCSD’s omission of key facts about a stalled car crashes a burglary prosecution."