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By PORAC | May 1, 2017 | Posted in PORAC LDF News

Deputy Sheriff Vindicated in Dramatic Courtroom Showdown

JOSHUA A. OLANDER
Associate Attorney
Mastagni Holstedt, APC

Modoc County Sheriff’s Office K-9 Deputy Daniel Nessling was vindicated on all charges after the District Attorney was forced to dismiss on the first day of trial. Deputy Nessling’s vindication came after 2 1/2 years of unwarranted scrutiny by the Modoc County District Attorney, a grand jury indictment and a misdemeanor charge for assault under color of authority. The case against him stemmed from a routine call, wild accusations by a desperate suspect and serious prosecutorial misconduct uncovered by Nessling’s attorney, Joshua Olander.

On November 4, 2014, shortly after midnight, Deputy Nessling responded to a “shots fired” call involving multiple suspects in a remote area of the County. When Deputy Nessling arrived, the suspects were in custody and the officers on-scene had begun their investigation. Upon arrival, Deputy Nessling immediately activated his body-worn camera and began assisting with the investigation. Deputy Nessling approached the alleged victim, Jason Colt, who was handcuffed, covered in blood and hysterical. Deputy Nessling donned protective gloves and attempted to question Mr. Colt regarding the incident. Due to Mr. Colt’s irrational behavior, obvious drug and alcohol intoxication, and overall noncompliance, Deputy Nessling was unable to gather information and decided to place Mr. Colt in the patrol vehicle pending completion of the investigation on-scene.

After conducting a patdown search of the belligerent suspect, and just prior to placing him in the vehicle, Mr. Colt suddenly dropped his shoulder and attempted to turn toward Deputy Nessling. As Deputy Nessling shifted his body weight to control the suspect and maintain distance, he lost his footing on the gravel road, and Mr. Colt slammed into the side of the vehicle. This split-second reaction by Deputy Nessling began a witch hunt by the Modoc County District Attorney’s Office spanning over two years.

Mr. Colt, who was admittedly intoxicated from alcohol, marijuana and opiates, was treated on-scene thereafter and denied injuries by Deputy Nessling. In fact, Mr. Colt claimed the initial officers on-scene slammed him several times when he was taken into custody. The immediate investigation uncovered that Mr. Colt was beaten up when he and two cohorts attempted to violently collect a $50 debt from an acquaintance. After the Modoc County Sheriff’s Office submitted their investigation to the District Attorney’s Office, including Deputy Nessling’s body-camera footage, District Attorney Jordan Funk declined to prosecute Mr. Colt and his co-conspirators and instead began investigating Deputy Nessling for assault under color of authority.

Mr. Colt, who had little recollection of the incident, was invited to District Attorney Funk’s home to review the video footage and police reports. During this meeting, the District Attorney instructed Mr. Colt to make a citizen complaint against Deputy Nessling — a strategy the District Attorney employed to later gain access to Deputy Nessling’s personnel file pursuant to his investigative authority under Penal Code Section 832.7. District Attorney Funk even went so far as to take out an advertisement in the local newspaper urging citizens to come forward regarding incidents of excessive force by Deputy Nessling.

After attempting to try the case in the local media and court of public opinion, District Attorney Funk made the decision to present the case to the Modoc County grand jury, a first in recent County history. On February 25, 2016, the grand jury indicted Deputy Nessling on one count of misdemeanor assault under color of authority. Attorneys Joshua A. Olander and Tashayla D. Billington drafted and filed a demurrer to the indictment, arguing that grand juries in California are prohibited from returning an indictment on a misdemeanor alone. This case of first impression was heard on April 20, 2016, in the Modoc County Superior Court by the Honorable David A. Mason. After hearing arguments by Mr. Olander and District Attorney Funk, Judge Mason granted the demurrer, ruling that the indictment was void, and set it aside. District Attorney Funk immediately filed a single-count misdemeanor complaint against Deputy Nessling for assault under color of authority.

The case was eventually scheduled for jury trial on March 13, 2017. However, in the week prior to trial, Mr. Olander discovered that District Attorney Funk was in possession of discovery that had not been disclosed to the defense. This discovery included a two-year-old recorded interview of the alleged victim by the District Attorney, his investigator and an expert. The evidence suppressed by the District Attorney was clearly constitutionally mandated discovery under Brady v. Maryland. In fact, the District Attorney’s Office was in possession of several recorded interviews of the victim and other prosecution witnesses that had not been disclosed. Despite repeated requests by Mr. Olander for these potentially exculpatory materials, on the morning of trial District Attorney Funk still had not provided the evidence to the defense.

Due to the blatant violations of Deputy Nessling’s constitutional right to due process and a fair trial, Mr. Olander urged the District Attorney to dismiss the case to avoid the embarrassment of a motion hearing on the issue. The District Attorney refused. Mr. Olander then presented his motion and the factual support for the District Attorney’s Brady violations to the judge in chambers. Following a lengthy chambers conference on the issue, Judge Mason decided that review and consideration of Mr. Olander’s pleadings and exhibits in support of his motion for dismissal was necessary. During Judge Mason’s review of the motion to dismiss, and before reaching a decision that appeared to lean toward granting the motion, District Attorney Funk decided to dismiss the case in the interest of justice.

Judge Mason agreed to the motion to dismiss, but ordered the jury panel present to hear the request and reasons for the dismissal. The court staff packed as many of the 400 jurors into the courtroom as possible, where District Attorney Funk explained not only that his alleged victim had serious credibility issues but, more importantly, that he had failed to disclose to the defense discovery materials they were entitled to receive. A number of jurors applauded the dismissal.

Shockingly, in the week following the dismissal, District Attorney Funk attempted to mislead the public regarding the reason for the dismissal. In a press release, District Attorney Funk blamed the reason for the dismissal on the alleged victim. But even understanding the alleged victim’s obvious credibility issues, the District Attorney had planned to proceed on the morning of trial until faced with his serious discovery violations and the likelihood that the court would dismiss the case for those reasons.

After over two years of defending his integrity and years of devoted public service from the misguided, personal attacks by the District Attorney and the local media, Deputy Nessling and his family can finally move forward with their lives. Deputy Nessling and Mastagni Holstedt, APC are grateful for the assistance of PORAC LDF, which provided Deputy Nessling with every available resource to fight this unjust prosecution and ultimately prevail.

About the Author

Joshua A. Olander joined Mastagni Holstedt, APC as an associate attorney in the Labor and Employment Department. He represents public sector employees in administrative and disciplinary investigations, hearings, critical incident investigations and criminal defense.
Olander earned his J.D. from California Western School of Law, where he graduated with honors in the criminal prosecution and defense practice concentration. He received his B.A. from the University of California, Davis.