Must police disclose past accusations against them before testifying? The answer could overturn an L.A. County drug case
The case seemed open and shut.
Los Angeles County Sheriff’s Sgt. Justin Walter told a jury how he had pulled over a sport utility vehicle for an expired registration tag.
The veteran sergeant went into detail about the stop — how he saw the SUV’s passenger sneak his hand between his seat and the center console. How he had considered the man’s furtive movements suspicious and decided to search the vehicle. And how he had found a few grams of methamphetamine in the spot where the passenger’s hand seemed like it had stuffed something away.
But more than a year after Walter’s testimony led to the conviction of Emil Alseranai on a drug charge, the case has become focused on what the sergeant did not tell the court or anyone else involved in the case: that Walter had previously been found liable by a federal jury in a civil lawsuit accusing him and other deputies of using false evidence or false testimony in a man’s arrest.
Now, Alseranai is seeking a new trial. He is arguing that the sheriff’s sergeant and the prosecution team violated his right to a fair trial by failing to notify him of the 2010 civil jury verdict. That evidence could call into question Walter’s credibility as a witness, Alseranai said.
An appeals court is weighing whether Sheriff Jim McDonnell can provide prosecutors with a list of roughly 300 deputies who have histories of being disciplined for making false statements, stealing, using excessive force and other serious misconduct. A deputies’ union took McDonnell to court last fall, arguing that disclosing the names would violate state law protecting the confidentiality of peace officer discipline files.
In Alseranai’s case, however, the information he says should have been disclosed isn’t a confidential police record — it’s a public jury verdict against an officer.
Superior Court Judge Michael Garcia is expected to rule Tuesday on whether Alseranai should be granted a new trial. One of the issues before the judge is whether law enforcement officers need to notify prosecutors or defendants about past civil jury verdicts against them that could call into question their credibility in court.
A brief filed by Deputy Dist. Atty. Margot Cotter said prosecutors are legally required only to check the names of police witnesses against the district attorney’s database of problematic officers. The office, which does not have access to police discipline files, learns about potential misconduct to include in its database from prosecutors who complain about wrongdoing, from law enforcement agencies when they present criminal cases in which officers are suspects, and from news articles.
Walter’s name did not turn up in a search of the database, Cotter said in her brief.
Cotter argued she was under no legal obligation to go out and look for additional information about Walter and that the sergeant was not legally required to disclose information about a civil case against him. Her motion cited a 7th Circuit Court of Appeals decision from 1992 that said prosecutors could not be found to have suppressed evidence if the defense could have obtained the same evidence using reasonable diligence.
Walter said in an interview that, as he sees it, he was never found in the civil case to have given false testimony or evidence and that he didn’t believe he had to notify prosecutors.
Cotter and a spokeswoman with the Los Angeles County district attorney’s office declined to comment.
Under the landmark 1963 U.S. Supreme Court decision in Brady vs. Maryland, prosecutors must alert defendants to any evidence favorable to the defense, including information that could call into question the credibility of a government witness. Subsequent court decisions have indicated that this so-called “Brady obligation” extends to members of the “prosecution team,” which includes police officers, police agencies, crime labs or any other entity that acts in partnership with prosecutors in a given case.
You would hope officers disclose this type of information.
Jerry Coleman, a special assistant district attorney in San Francisco County
Jerry Coleman, a special assistant district attorney in San Francisco County who teaches prosecutorial ethics at the University of San Francisco School of Law, said it would be the “best practice” for individual police officers to notify prosecutors of possible problems in their own background.
“You would hope officers disclose this type of information,” he said.
Some experts say prosecutors ought to be eager to learn about possible credibility problems with the officers whose testimony they rely on. If a court later decides such information was suppressed, a conviction could be overturned, they said.
Lael Rubin, a former prosecutor in the Los Angeles County district attorney’s office, noted that “a civil jury verdict that found a deputy had falsified evidence is information that a prosecutor would want to know about.”
Rubin, who emphasized she was not speaking about any particular case, was responsible for developing the office’s Brady policy under former Dist. Atty. Steve Cooley and also sits on the Sheriff Civilian Oversight Commission.
Alseranai, who was charged with possessing methamphetamine for sale, happened to find the verdict against Walter by Googling the sergeant’s name just before the last day of his criminal trial.
In the civil lawsuit, Ronald Johnson claimed that Walter was among four deputies who falsely arrested him outside a Lynwood motel in 2008, planted cocaine on him and beat him, sending him to an intensive care unit for six days. Johnson was charged but the case was later dismissed.
When his lawsuit went to trial in 2010, a federal jury disagreed with Johnson’s excessive force claim but found that the deputies used false evidence or false testimony against him. The completed verdict form, which did not allow the jury to elaborate on what the panel considered to be the false evidence, explained that jurors could reach such a verdict if they concluded the deputies “failed to intervene” in others’ use of false evidence or testimony.
The deputies also “acted with malice, oppression or reckless disregard for Ronald Johnson’s rights,” according to the jury’s verdict. The jurors awarded Johnson $75,000 in compensation and an additional $66,000 that the deputies individually had to pay him in punitive damages, including $12,000 by Walter.
Alseranai told his attorney at the time, Stuart Dumas, about what he had discovered online, but Dumas decided not to act on the information. As part of his motion for a new trial, Alseranai is accusing his former lawyer of providing him ineffective assistance.
In a recent interview, Dumas denied the claim and said it’s unclear whether the prior verdict against Walter would have had a meaningful impact on Alseranai’s case.
He said the jury’s false evidence finding stemmed from the deputies’ use of a ruse to entice Johnson out of his dwelling. The deputies, acting on a tip that Johnson was armed and dealing drugs, employed a tow truck driver to simulate the act of towing Johnson’s car away — a method Walter said was apparently frowned upon by the jurors at trial but was nonetheless a legal practice.
Walter pointed out that the judge in the case, S. James Otero, set aside the $66,000 punitive damages award — including the $12,000 against Walter. The judge ruled the amount was “without foundation.”
“I don’t sit as the 13th juror, but I think my — my comments may be important to the officers in reference to any review by internal affairs based upon the finding of the jury regarding punitive damages,” Otero said in court after the verdict was read. “I found nothing in the record that would warrant a finding in favor of the plaintiff on the issue of punitive damages.”
Johnson’s attorney, Glen Jonas, said he agreed to allow the judge to set aside the punitive damages to allow the case to conclude and not be appealed. The federal jury’s verdict against the deputies is still a significant finding, he said. The county paid out $387,500 in the Johnson matter, including $312,500 in legal fees, said Steven Estabrook of the county counsel’s office.
Jonas, who is now representing Alseranai, said his client has always maintained his innocence in the drug case. Alseranai maintains as he did at trial that it was in fact the SUV’s driver, who was his girlfriend, who owned the drugs found in the vehicle.
“Once they found out about the evidence of the jury verdict against Walter, prosecutors should have been racing to the courthouse to fix their error,” Jonas said. “Instead, they want to let it stand.”
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