LAKEPORT, Calif. – On Tuesday the Board of Supervisors approved a final contract with a Southern California law firm that will represent the sheriff in response to an investigation into allegations that he lied about a shooting incident he was involved in while a deputy.
In a 4-1 vote, with Board Chair Rob Brown voting no, the board approved the contract with Jones & Mayer of Fullerton, with a cap of $6,500, for legal representation for Sheriff Frank Rivero.
District Attorney Don Anderson is considering whether or not to give Rivero a “Brady letter” in connection with a February 2008 shooting in which he shot at – but did not hit – a man holding pepper spray.
It’s alleged that Rivero lied to investigators about the incident, which Anderson investigated after taking office last year.
Based on case law that developed from the 1963 U.S. Supreme Court decision Brady v. Maryland, prosecutors cannot withhold potentially exculpatory information from the criminal defendants. That includes the requirement that they divulge any credibility issues of law enforcement officers involved in criminal cases.
In March, the board refused to hire Rivero an attorney to respond to Anderson’s investigation, instead wanting County Counsel Anita Grant – who had declared a conflict – to explore erecting an ethical wall in her department so one of her staffers could represent him.
Last month a visiting judge gave Rivero a writ of mandate to force the board to pay for his legal expenses in the case based on Government Code Section 31000.6, which says the board “shall contract with and employ legal counsel to assist the assessor or the sheriff in the performance of his or her duties in any case where the county counsel or the district attorney would have a conflict of interest in representing the assessor or the sheriff.”
Anderson, who has been waiting for the situation to be resolved so he can make a finding, is due to meet with Jones & Mayer on Oct. 9, with a decision expected the following day, Grant told the board Tuesday.
Last week, the board had asked Grant to write a letter to Anderson asking him to expedite his decision. Brown said he still wanted that letter sent to Anderson.
The letter to Anderson Grant drafted acknowledges that the decision is “solely within your purview as the District Attorney and this Board does not intend to intrude in any way in that process. We do, however, want you to be aware that it would be a great service to the County and our residents if you proceed with this matter as expeditiously as possible.”
“Basically, this is a public defender for the sheriff,” Brown said during Tuesday’s meeting, explaining that he wanted to make sure Rivero’s calls and communication with the law firm are kept to a minimum and relevant to the case.
“We have a real problem here. We have a sheriff who spends more time in court that Lindsay Lohan,” said Brown, adding that he doesn’t want Rivero gathering information for other cases.
Grant said the contract is limited to this case alone, and Jones & Mayer is ethically constrained to adhere to it.
“We're all doing this holding our noses,” said Brown. “I can't support this.”
Supervisor Jim Comstock wanted to know what programs in the county wouldn’t happen due to spending the money on the attorney’s contract.
Grant said the funds will come from the Local Assistance for Rural and Small County Law Enforcement fund. “I think there’s a very healthy amount of money in there.”
Supervisor Anthony Farrington asked if the county would have to provide legal counsel beyond Anderson’s decision if Rivero doesn’t like it.
“Where does this end?” asked Farrington, who wanted to know how far it could go under the state statute.
Grant said that just because a person wants to take something to court doesn’t mean they have the legal basis to do so. She added that the courts give great weight to Brady decisions.
While the case could go to the superior court and beyond, she said attorneys have ethical obligations not to pursue legal actions that are not legally sound. That doesn’t mean the client will take the advice.
“At this point I think there is not a foregone conclusion,” said Grant, who added that she believed Anderson will have a fair and open process.
She said that to pursue the cause further, it will need to be proven that it’s a reasonable and justifiable use of funds. Community members also will have to agree. “Those decisions are made at the ballot box,” Grant said.
Farrington moved to approve the agreement, which passed 4-1, with Brown the dissenting vote. Two motions that followed – one to approve the letter to Anderson and the second to approve a resolution to appropriate the money – each passed 5-0.
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