Almanac

News - April 21, 2010

Atherton asks D.A. to investigate police misconduct charge

by Renee Batti

The town of Atherton has asked the San Mateo County District Attorney's Office to investigate "the allegation of falsifying a police report" detailing the 2008 arrest of Atherton resident Jon Buckheit. The falsification charge was brought to light by a police officer during a court case earlier this year in which Mr. Buckheit won a declaration of factual innocence in the case.

Mr. Buckheit and several other residents have been demanding an investigation of the matter.

Atherton officials first mentioned the investigation April 14 on the town's blog in a two-sentence statement that didn't mention who would be conducting the investigation; nor did it mention that the matter pertained to the Buckheit case.

Later that day, Assistant City Manager Eileen Wilkerson said in a prepared statement, "The town is following its current process and due to the potential perception of conflict of interest the allegation of falsifying a police report has been referred to the San Mateo County District Attorney."

Stephen Wagstaffe, chief deputy district attorney, said last week that his office had received the request to investigate around the end of March.

When he learned that the town has asked the district attorney to investigate the falsification charge, Mr. Buckheit said the request is "totally inappropriate." Because his lawsuit names the county, "and that includes the D.A.," how can that office "pass judgment on the wrongfulness of what was done to me?" he asked. "The D.A. has a vested interest in not exposing the wrongdoing."

Mr. Buckheit also said that Mr. Wagstaffe was involved in his conflict with the town in another significant way that makes his office unsuitable to investigate the town's conduct surrounding the arrest and its aftermath. After his arrest, Mr. Buckheit had to fight the town to obtain a copy of the police report about the incident — a fight that cost the town $8,000 to cover Mr. Buckheit's attorney's fees after he successfully sued for the report.

Mr. Buckheit said Mr. Wagstaffe "was complicit" in withholding the report, adding that when his attorney called Mr. Wagstaffe to obtain the report, "Wagstaffe said he wouldn't agree to release it."

But Mr. Wagstaffe said that Mr. Buckheit's "facts are just wrong." By the time the attorney called, "we had already reviewed it and returned it to the town," he said.

"That's how we do it: If the department decides not to investigate, we don't keep the documents," he added. "When (the attorney) called me for it, I didn't have the document to give to him."

Regarding Mr. Buckheit's claim that because his lawsuit names the county, the district attorney shouldn't be involved in the investigation, Mr. Wagstaffe said, "If we had a legal conflict, we would withdraw." Opinions issued by the state attorney general support the involvement of the district attorney under the circumstances, he said.

Mr. Buckheit also took issue with the town's characterization of the issue as an "allegation." "It's very important to (understand that) the police report being altered is not an allegation — it is the sworn testimony of an Atherton police officer," he said.

The police report and court records have been sealed by the court, but Mr. Buckheit, who may release information if he chooses, provided The Almanac with pages from the court transcript that describe some of the court testimony of an Atherton police officer, whom Mr. Buckheit identifies as Tony Dennis. Asked by Mr. Buckheit's attorney whether he believed "that someone changed your report or added this into the report," the officer responded, "That appears to be what happened, that appears to be what have (sic) happened, yes, because I do not remember putting that in there, nor was that my intention."

Mr. Buckheit was arrested during a domestic violence incident at his home. He said that although he was the victim, and had the injuries to prove it, the police arrested him instead of the woman who he said assaulted him.

The district attorney did not file charges, but the town refused to turn over the police report to Mr. Buckheit for months. He finally obtained it last June, along with his attorney's fees.

Mr. Buckheit filed a lawsuit in federal court last October over the arrest and its aftermath. In it, he names the town of Atherton, San Mateo County, and three police officers.

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