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.
