Man wins re­trial over cred­i­bil­ity of witness

De­fense attorney should have acted on info raising ques­tions about a sher­iff ’s sergeant, ju­rist says.

Los Angeles Times - - CITY & STATE - By Maya Lau maya.lau@la­times.com

A Los An­ge­les County judge threw out a man’s drug con­vic­tion Tues­day and granted him a new trial, rul­ing that his attorney should have acted on in­for­ma­tion that raised ques­tions about the cred­i­bil­ity of a key law en­force­ment witness dur­ing the trial.

Los An­ge­les County Sher­iff’s Sgt. Justin Wal­ter tes­ti­fied last year that he found metham­phetamine and thou­sands of dol­lars in cash in­side a sport util­ity ve­hi­cle after he’d pulled over the ve­hi­cle for an ex­pired reg­is­tra­tion tag. His tes­ti­mony led to the con­vic­tion of Emil Alser­anai, 39, for drug pos­ses­sion for sale.

Alser­anai dis­cov­ered in a Google search dur­ing his trial that Wal­ter had been found li­able in an un­re­lated civil law­suit ac­cus­ing him and other deputies of us­ing false ev­i­dence or false tes­ti­mony in a man’s ar­rest, but Alser­anai’s attorney at the time, Stu­art Du­mas, did not act on that in­for­ma­tion.

Su­pe­rior Court Judge Michael Gar­cia said Tues­day that ev­i­dence of the prior civil jury ver­dict against Wal­ter would have been rel­e­vant in Alser­anai’s trial and could have changed the out­come of his case had it been pre­sented by the de­fense. The judge ques­tioned how Du­mas, who hired a private in­ves­ti­ga­tor to help on the case, had not un­cov­ered the civil judg­ment.

“It would have been rel­a­tively easy to conduct a sim­ple record search” to find the ver­dict against Wal­ter, Gar­cia said.

Du­mas did not im­me­di­ately re­spond to a re­quest Tues­day for com­ment. The dis­trict attorney’s of­fice de­clined to com­ment.

The judge said that some ev­i­dence in the trial ap­peared to sup­port the tes­ti­mony of a witness who con­tested Wal­ter’s ver­sion of events.

Alser­anai’s girlfriend, Kristina Kay — who was driv­ing the SUV at the time she and Alser­anai were pulled over — had tes­ti­fied that she alone owned the drugs and cash.

She also tes­ti­fied the drugs were found be­hind an air vent in the ve­hi­cle, not in a crevice be­tween a seat and the ve­hi­cle’s con­sole, as Wal­ter had told the jury. Kay had added that the money was in her purse, not on the floor of the ve­hi­cle, as Wal­ter tes­ti­fied.

“The case came down to a claim by Wal­ter, the sole witness for the peo­ple, who con­ducted the stop and said he ob­served furtive move­ments in the car,” Gar­cia said.

He noted the new ev­i­dence could call into ques­tion the cred­i­bil­ity of the pros­e­cu­tion’s only witness.

Gar­cia, how­ever, did not agree with Alser­anai’s other claim that Wal­ter him­self should have no­ti­fied pros­e­cu­tors in the crim­i­nal case about the jury ver­dict against him. The judge said nei­ther pros­e­cu­tors nor Wal­ter sup­pressed the ev­i­dence be­cause the jury ver­dict is public in­for­ma­tion that could have been found by de­fense coun­sel.

He in­stead con­cluded that the onus was on the de­fense, not on pros­e­cu­tors or the deputy, to find out the in­for­ma­tion about Wal­ter.

Un­der the land­mark 1963 U.S. Supreme Court de­ci­sion in Brady vs. Mary­land, pros­e­cu­tors must alert de­fen­dants to any ev­i­dence fa­vor­able to the de­fense, in­clud­ing in­for­ma­tion that could call into ques­tion the cred­i­bil­ity of a gov­ern­ment witness. Sub­se­quent court de­ci­sions have in­di­cated that this so-called Brady obli­ga­tion ex­tends to mem­bers of the pros­e­cu­tion team, which in­cludes law en­force­ment of­fi­cers, agen­cies, crime labs or any other en­tity that acts in part­ner­ship with pros­e­cu­tors in a given case.

Alser­anai’s attorney, Glen Jonas, said he was pleased his client had won a new trial but ex­pressed con­cern about the rul­ing.

“The judge’s rul­ing puts all de­fense at­tor­neys on no­tice that it’s their obli­ga­tion to find out about pos­si­ble mis­con­duct by of­fi­cers,” he said. “While my client won to­day, the ci­ti­zens of Los An­ge­les lost a lit­tle.”

In 2010, a fed­eral civil jury found Wal­ter and three other deputies li­able for the use of false tes­ti­mony or false ev­i­dence in a man’s ar­rest. Ron­ald John­son sued the deputies, say­ing they falsely ar­rested him out­side a Lyn­wood mo­tel in 2008, planted co­caine on him and beat him, send­ing him to an in­ten­sive care unit for six days. John­son was charged, but the case was later dis­missed.

Wal­ter did not im­me­di­ately re­spond Tues­day to a call and mes­sages seek­ing com­ment. He said in a pre­vi­ous in­ter­view that no false state­ments were ever used in John­son’s case and that he be­lieved the ver­dict stemmed from the jury’s ap­par­ent dis­ap­proval of a ruse used by deputies to en­tice John­son to leave a build­ing. He said us­ing the ruse was le­gal.

Jonas also rep­re­sented John­son in the pre­vi­ous civil case against Wal­ter. He said the judge’s rul­ing Tues­day may open Wal­ter up to cros­sex­am­i­na­tion on the John­son case in Alser­anai’s re­trial.

“I’m re­lieved,” Alser­anai said out­side the court­room after his con­vic­tion was tossed. “I just want the truth to come out, the truth about dis­hon­est cops.”

Rick Loomis Los An­ge­les Times

DE­FENSE attorney Glen Jonas, left, and his client, Emil Alser­anai, cel­e­brate after Alser­anai was granted a re­trial on drug-traf­fick­ing charges.

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