LAKEPORT, Calif. – In the second day of motion hearings in preparation for their May trial, three men charged for a June 2011 fight won the right to access the Lake County sheriff's personnel records.
The ruling means that at trial Nicolas Carrillo, Josh Johnson and Timothy Bianchi – all members of the Sonoma County Hells Angels Chapter – will be able to use information taken from Sheriff Frank Rivero's personnel documents in their defense.
The men are facing charges including criminal street gang participation and battery – with Bianchi also facing assault with a deadly weapon other than a firearm – for the fight with validated Vagos motorcycle gang member Michael Burns and another man, Kristopher Perkin on June 4, 2011, during a tattoo convention at Konocti Vista Casino in Lakeport.
Retired Judge David Herrick ruled on Thursday that portions of Sheriff Frank Rivero's personnel records were discoverable in the case based on a Pitchess motion – used for seeking peace officer records – filed by attorney Michael Clough on behalf of his client Carrillo, with Herrick also ruling that Johnson and Bianchi would be able to access the information.
Clough also sought personnel records for Sgt. Gary Frace, who at the time of the fight was a deputy who responded to the incident and worked on the investigation.
Herrick reviewed Rivero's and Frace's personnel records in chambers. In Frace's case, Herrick reviewed five years of records.
For Rivero, he looked at all records going back to October 2011, which was the point at which Judge Andrew Blum had reviewed Rivero's records during a previous Pitchess motion but found no discoverable material.
During the first day of motion hearings in the case on Wednesday, it was stated in court that after Frace made statements to a sergeant that the case was closed, Rivero issued an order preventing Frace from discussing the case with anyone else.
Herrick said that in looking at the files he was seeking items concerning the thoroughness, competency and quality of Frace's investigative abilities and techniques.
“I find one body of documents all pertaining to the same incident to be discoverable in a Pitchess motion on those issues,” he said.
Herrick said the sheriff's complaint was that Frace was derelict in his duties in his investigation of the Hells Angels case, including a generalized complaint about the investigation, and a specific complaint about the absence of any arrests or identification of suspects.
That complaint resulted in an internal affairs investigation, the details of which Herrick said could be subject to some privilege.
With regard to Rivero's records, Herrick said there was only one complaint that he found to be within the scope of what he was looking for.
Without divulging the contents of the documents, Herrick said it related to a “general allegation of false statements” that were in no way related to the Hells Angels case.
Rivero has been under investigation by the District Attorney's Office for allegedly lying about his actions during a February 2008 incident in which he shot at a man with pepper spray while he was working as a sheriff's deputy.
District Attorney Don Anderson has carried out the investigation as part of an inquiry related to the 1963 US Supreme Court case Brady v. Maryland, which requires prosecutors to divulge to criminal defendants any information that could be exculpatory, including matters relating to the credibility of law enforcement officers involved in their cases.
Anderson told Lake County News last week that he had made the decision but had reached an agreement with Rivero's attorney to hold the decision for a 10-day period. That embargo is set to end on Friday.
Herrick placed a protective order on the personnel records, which may be accessed by the defendants but are are not to be disclosed publicly. He also released the names of witnesses to the investigations to the defense.
Another hearing in the case is scheduled for March 22, and Clough indicated that if he can't interview the witnesses whose names Herrick released to him he will at that time seek to get the substance of the reports.
Clough also has been seeking Brady disclosures on Rivero, although the District Attorney's Office has indicated they don't intend to call Rivero as a material witness at trial, which would mean they would not have to disclose any Brady material.
Senior Deputy District Attorney Art Grothe offered to go in chambers with Herrick to show him “a document” that would assist the judge in making an informed decision about the Brady matter.
Clough noted, “We do not know the substance of the document. We obviously have an idea of the substance of the document,” and he said he was prepared to waive the right of the defendants to be present at the in-chambers review of the information.
Herrick ultimately agreed to the confidential discussion with Grothe in chambers, and when he emerged he ordered the document to be made available to the defense under the same rules as the Pitchess motion materials. None of it can be used until trial, scheduled for May.
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