Almanac

News - January 30, 2013

DA says his office should not have dismissed case against Menlo cop

by Sandy Brundage

"We made a mistake in this case," said Santa Clara County District Attorney Jeff Rosen. "We should not have dismissed the soliciting prostitution charge against the police officer."

"While this case was not dismissed to protect the officer, I have spoken with the prosecutor who made that decision. He now realizes he made an error. While no one likes unfavorable media coverage, I appreciate the media coverage in this case because it brought the mistake to light and allowed me to educate and correct our staff moving forward."

The Almanac broke the story that veteran Menlo Park police officer Jeffrey Vasquez faced a misdemeanor criminal charge in 2011 after Sunnyvale police caught him naked in a motel room with a woman reportedly hired through "My Redbook," a website listing local escorts and their phone numbers. Both Officer Vasquez and Natalia Ramirez admitted they were engaging in prostitution, according to court records, then pleaded not guilty.

The outcome of the case raised as many eyebrows as the circumstances of the offense. Prosecutors discovered the day of Ms. Ramirez's trial — July 11, 2011 — that the officer who interviewed her wasn't available to testify due to a family crisis. Ms. Ramirez had not waived time, leaving prosecutors only 10 days to decide whether enough evidence remained without that key testimony, according to Deputy District Attorney Rob Baker, who supervised the case. His team concluded they couldn't prove the case against her — a decision that then led to dismissing the case against Officer Vasquez as well.

District Attorney Rosen agreed that the investigating officer's testimony was essential, but challenged the decision to immediately drop the case.

"The case should not have been dismissed. Because police officers enforce the law, they should be held to a high standard," Mr. Rosen said, without going into specifics as to what options the prosecution had.

He implemented a policy change as a result: From now on, all cases involving law enforcement officers as defendants will go to Assistant District Attorney Marc Buller for review.

Public criticism that the investigating officer was conveniently absent only for the Ramirez-Vasquez cases appears unfounded. While helping his wife through a life-threatening illness, the Sunnyvale officer received four subpoenas during July and August 2011, and testified in none of those cases, according to police department data: He was unavailable for two cases, the defendant pleaded guilty in the third, and the fourth case — the prosecution of Ms. Ramirez — was dismissed.

The officer returned to the stand four months later, in November 2011.

Hard numbers

It's surprisingly difficult to learn how many police officers in Menlo Park, as well as throughout Santa Clara and San Mateo counties, have faced prosecution. The district attorney offices don't track that data, although Santa Clara County, at least, intends to start.

"We do not have the technical capability to answer this question comprehensively," said spokesman Sean Webby. "You've raised an important issue. The District Attorney has directed staff to study improving our data system so that we will be able to identify such cases more easily in the future."

San Mateo County, on the other hand, is not so inclined.

"We definitely do not keep statistics on the number of officers prosecuted," said District Attorney Steve Wagstaffe. "We have prosecuted numerous officers over the last few years for both felonies and misdemeanors ranging from drunk driving to theft to felony assault. But we do not keep a list of those prosecutions."

The Brady list kept by each county provides scant data to the public. In 1963 the U.S. Supreme Court, in Brady v. Maryland, ruled that prosecutors must disclose exculpatory evidence to the defense, including misconduct by a police officer who might be called as a witness in a case if that misconduct could discredit or impeach the officer's testimony.

As in other jurisdictions, San Mateo County maintains a confidential "Brady list" of police officers charged or convicted of an offense, and discloses that information to the defense in cases where an officer facing charges or serving probation will be called as a witness.

Mr. Wagstaffe said "there are under 10 officers presently employed and working in this county on the Brady list." He noted that during his 36 years at the district attorney's office, "we have had dozens of officers who engaged in conduct we deemed Brady and disclosable."

No city records?

Officer Vasquez returned to his job with the Menlo Park police department after an arbitrator overturned the city's decision to fire him.

The Almanac asked the city how many current police officers have criminal records, and how many officers were fired during the past 10 years.

The city refused to answer, saying that no such record exists.

"This request for statistics would require the City to physically review individual records/personnel files and create documents that do not exist. The records themselves are confidential personnel information which we are required to maintain as such," said Gina Donnelly, human resources director for Menlo Park, in an email on Jan 24.

Legal counsel for the California Newspaper Publishers Association said it's hard to believe no document, such as an annual report to city management on employee disciplinary actions, exists.

CNPA attorney Jim Ewert said: "If they claim that they don't track this, then the issue becomes why not? The city has tremendous exposure to liability for the acts of their employees who carry guns, and they don't keep track?"

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