Attempt to Hold Sheriff’s Deputies and District Attorney Investigator in Contempt Fails

Posted on Wednesday, December 01, 1999 at 12:00PM

Members of the Santa Cruz Deputy Sheriffs Association and Operating Engineers Local 3 were successfully defended in an unusual effort by a group of criminal defense attorneys to have two deputy sheriffs, a district attorney investigator, and a deputy district attorney held in contempt of court. The action arose in the context of the prosecution of seven defendants accused of attempted murder. The court assigned counsel to each of the defendants. The deputy sheriffs prepared an order for the court to sign, ex parte, compelling the defendants to appear in a line-up with a small number of fill-ins. The two deputies presented the order to the judge in chambers without having given notice to the appointed counsel, and did not inform the court that counsel had been appointed. The deputies had prepared similar ex parte orders in the past, including orders for such things as access to bank and telephone records, but had never previously prepared such an order where the defendants were represented by counsel.

When the defense counsel were notified that the line-up was going to occur, they immediately complained that they had not been notified that a line-up order had been sought. The deputies consulted with the deputy district attorney, who advised them that he felt that the order may not be valid because the appointed counsel had not been notified. He therefore suggested that the defendants be asked to give their voluntary agreement to participate in the line-up. When the defense counsel appeared at the jail, they did not know that the deputy district attorney and the deputy sheriffs did not intend to use the court’s order, and an angry confrontation ensued between the deputy district attorney and the defense counsel.

While the confrontation was going on, the deputy sheriffs contacted the defendants in custody and obtained their approval to participate in the line-up. The confrontation between the defense counsel and the deputy district attorney occurred in a relatively public area of the jail, and was recorded by an investigator from the district attorney’s office. When one of the defense counsel observed that the investigator was holding a microphone, each of the defense counsel objected to the meeting being taped. When the defense counsel were informed that the order was not going to be used and that the defendants had given voluntary consent, they demanded to see their clients. As a result, each of the defendants withdrew consent for the line-up. No line-up was held.

Nevertheless, when the next court appearance occurred, the defense counsel angrily informed the judge what had occurred, and the judge apologized and assured the defense counsel that when she signed the order she was unaware that attorneys had been assigned. The judge then declared that the best way to resolve the issue was to set the matter for an order to show cause involving the deputy district attorney, and the two deputy sheriffs, and that “anything that stemmed from this incident should be suppressed.”

The defense counsel submitted an application to have the deputy district attorney, the two deputy sheriffs, and the district attorney investigator who tape recorded the semi-public conversation to be held in contempt. Stewart Weinberg, a partner of VanBourg, Weinberg, Roger & Rosenfeld in Oakland, California, was assigned by the LDF to represent the deputies. Motions were filed to dismiss the application on the procedural ground that the court had not issued an order to show cause, a jurisdictional prerequisite to a contempt proceeding. The court refused to issue orders to show cause, finding that there was no contempt of court. The conduct of the deputies in obtaining a court order for a line-up in the absence of assigned counsel did not rise to the level of contempt, when a court order to conduct a line-up was not even required by law. Adequate notice of a voluntary line-up was given to the defense counsel along with an opportunity to meet with their clients, when they persuaded their clients to withdraw their voluntary consent. The court indicated that there was no authority for the proposition that a defense attorney has a right to meet with his client before a line-up, but merely has a right to be present during the line-up. As to the recording of the conversation, not only was it not done surreptitiously, it was done in a setting where the defense counsel had no expectation of privacy.

Ultimately, the court held that there were better ways of dealing with this kind of problem than to have one’s adversaries held in contempt of court.

PORAC Legal Defense Administrator Ed Fishman Testimony: Law Enforcement Use of Body Cameras.