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Judge Andrew Blum took about an hour and a half to conduct the in-chambers review of the records of Sheriff Frank Rivero and Sgt. John Gregore.
Oakland attorney Michael Clough had filed a Pitchess motion last month for release of information from Rivero's and Gregore's personnel records in an attempt to find information beneficial to the case of his client, 33-year-old Nicolas Carrillo of Santa Rosa.
Pitchess motions resulted from the 1974 California Supreme Court case, Pitchess v. Superior Court, and are based on the theory that a defendant in a criminal case should have any information – including alleged or potential misconduct in an arresting officer's personnel files – that could help their defense.
Carrillo and three co-defendants – all alleged to be Hells Angels – are accused of taking part in a June fight at Konocti Vista Casino with a member of the rival Vagos motorcycle gang.
Joining the motion was Josh Johnson, who also is charged in the case.
Carrillo and Johnson were in court with their attorneys on Monday afternoon. Rivero was present, along with Capt. James Bauman, Deputy County Counsel Lloyd Guintivano and county Human Resources Director Kathy Ferguson.
In arguing for Blum to review the records, Clough said there were unusual circumstances in the case, which was first investigated and closed by a deputy.
The case was reopened after Rivero personally went to Konocti Vista Casino and took possession of security tapes. Clough said there is very little discovery information thus far about how those videotapes were handed over, and that could become a serious issue for that evidence.
Clough said he'd never been involved in a case where a sheriff personally became involved and reopened an investigation.
Gregore and Rivero are both potential witnesses in the case, according to Deputy District Attorney Art Grothe, who is prosecuting the case and was present for the hearing.
Clough alleged that it “seems pretty obvious” that Rivero has a bias and personal interest in the case, suggesting the case was one of “selective prosecution.”
He said both Carrillo and Johnson arrived 10 seconds after the fight started, and later had their bail set at $500,000 which was an attempt to prevent them from making bail.
Guintivano argued that there was no good cause for Clough's request, which he also attacked as too broad and lacking specificity.
He said previous examinations in Rivero's file are either unfounded or still pending an outcome.
The only purpose for seeking the information, Guintivano said, was “to attack the character of the officers involved.”
If the court did find good cause for examining the records, Guintivano said it should be an “in camera” – or private and in chambers – review, and disclosure should be limited to people who made complaints against Rivero and Gregore and any witnesses named in those complaints.
Clough told the court he was not entitled to the findings of any personnel investigation. Rather, he wanted names of complainants so he and his fellow defense attorneys could conduct their own investigation into any complaints against Rivero and Gregore.
Clough also raised issues about the May 14 mobilization of sheriff's resources in response to reports of Hells Angels coming to the county in response to the appearance of the Vagos. He said that was critical to the case as well because it was indicative of weakness in the evidence provided to law enforcement regarding the Hells Angels. Some of the people who provided that information may testify in Carrillo's and Johnson's trial, he said.
Blum agreed with Guintivano that Clough's original motion was too broad. However, he went on to state, “What I'm hearing argued now is the defense theory that there's bias in the sheriff's department, perhaps of these two individual officers.”
He also pointed to part of Clough's argument, involving an alleged bias on the sheriff's part that could be reflected in his subordinates.
“With that very limited perspective I'm going to find there is good cause to conduct an in camera hearing,” Blum said, adding he was only looking for potential bias on Gregore's and Rivero's part regarding the Hells Angels.
He went into chambers with a court reporter, Ferguson, Bauman and Guintivano. Guintivano asked Rivero if he wanted to go in but Rivero didn't go into chambers.
When Blum emerged, he found there was no evidence of bias and no information to turn over to Clough.
The next hearing in the case is set for Dec. 5. That hearing likely will consider a large amount of discovery evidence Clough is seeking. Grothe acknowledged on Tuesday that the District Attorney's Office will comply with that discovery request.
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