In writing about prosecutorial misconduct we most often cover instances of the state’s behavior at or leading up to trial when failures to disclose exculpatory evidence, improper argument, and other issues of courtroom practice are raised on appeal.
Harder to chronicle is the mostly invisible role of the prosecutor in the investigative process itself, prior to grand jury proceedings and indictments. But as the unfolding scandal over massively excessive wiretapping in Riverside County shows, when enough journalistic resources are brought to bear, this far less readily regulated area of state conduct can at least be brought into the light of day.
This service was performed admirably last fall by investigative journalists for the Desert Sun and USA Today. Their report on how Riverside County prosecutors, whose myriad instances of misconduct we have chronicled before, had aided federal drug agents in creating an unprecedented wiretap mill, overseen by a single judge, threw open the door on one of the most secretive aspects of criminal investigations. As that report described it:
Federal drug agents have built a massive wiretapping operation in the Los Angeles suburbs, secretly intercepting tens of thousands of Americans’ phone calls and text messages to monitor drug traffickers across the United States despite objections from Justice Department lawyers who fear the practice may not be legal. Nearly all of that surveillance was authorized by a single state court judge in Riverside County, who last year signed off on almost five times as many wiretaps as any other judge in the United States. The judge’s orders allowed investigators — usually from the U.S. Drug Enforcement Administration — to intercept more than 2 million conversations involving 44,000 people, federal court records show.
To put in perspective just how out of control the issuance of wiretaps–ostensibly the investigative tool of last resort–had become, the report goes on the lay out the numbers.
In Riverside, the authorities’ use of that last-ditch tool quadrupled over the past four years. Last year alone, Riverside County prosecutors and a local judge approved 624 wiretaps, far more than any other jurisdiction in the United States, according to records compiled by the federal court system. Nearly all were tied to drug investigations. [Riverside County Superior Court Judge Helios] Hernandez authorized 624 wiretaps that ended [in 2014], and another 339 that ended [in 2013]. Hernandez approved three times more taps than all of the federal judges in California combined [in 2014], and once received more wiretap applications in a day, 17, than most courts do in a year.
It is unsurprising to learn that before taking the bench, Judge Hernandez was the county’s chief narcotics prosecutor.
However, because federal prosecutors rarely use state-authorized wiretap evidence in federal court, it appears that the chief use that much of this enormous volume of evidence has been put to is in making drug seizures that DEA agents are tipped off to as a result of the wiretaps. The problem being that, without this wiretap evidence being introduced in court, police and investigators need to come up with some other “parallel” probable cause to justify their initial stops of drug suspects.
This has already led to at least one federal drug case falling apart. A Riverside County wiretap led federal agents to suspect a truck driven by George Covarrubaiz on the other side of the country, in Virginia, was carrying heroin. The agents instructed a police officer to “find a reason to stop the truck and search it,” which he did, relying on broken LED lights. The problem being that the broken lights were not a moving violation in Virginia. Eventually, federal prosecutors were forced to produce the wire tap evidence to justify the stop.
U.S. District Court Judge Michael Urbanski declared himself “singularly unhappy with the way the government has conducted this case.” And in March, the Justice Department abandoned it altogether, dismissing the charges against Covarrubaiz.
As Nathan Wessler of the ACLU told the Desert Sun, “Th[is] approach [of using wiretaps to identify suspects and then seeking a different probable cause to stop them] ends up insulating dubious police practices from any kind of judicial review. That’s what [sic] so pernicious about it.”
This past week the same newspaper reported that these practices are now coming home to roost in more cases, in particular because of another grave problem with the legality of this evidence that lies at the base of many federal drug prosecutions, a problem which directly implicate the behavior of former District Attorney Paul Zellerbach, head of the Riverside DA’s office “during an unprecedented rise in wiretaps.”
According to allegations filed in a federal drug case in Kentucky which has its origins in Riverside County wiretaps, Zellerbach “did not review each wiretap application personally, which was required by federal law.”
This, indeed, was the conclusion of the Desert Sun’s initial investigation, which uncovered this “more systematic problem:”
Zellerbach admitted that he delegated approval of all wiretap applications to an assistant, despite federal law requiring he review the applications himself. Congress added this requirement in the 1960s, after the FBI eavesdropped on civil rights leaders, to ensure that such wiretaps would not be abused.
‘What they feared is what Paul Zellerbach created by his dereliction of duty,’ Butler [a defense attorney] said in the court filing. ‘A rogue district attorney’s office that applied for 20% of the wiretaps in the United States with no oversight by an elected official and no concern for privacy rights.’
The Kentucky case is the first to challenge that surveillance in federal court, and could have implications for prosecutions across the United States in which police relied on Riverside County eavesdropping. The case may also force the Justice Department to take a position on whether the wiretaps were lawful, something it has not publicly done.
Paul Zellerbach’s successor, District Attorney Mike Hestrin, told the Desert Sun that he had reformed the process of obtaining wiretaps through his office, and that he now personally approved each request.
However, he added, “This is an area of our law, an area of our law enforcement, where we can’t be totally transparent, in the same way that the federal government can’t be totally transparent about the massive intelligence operations they run.”
We will be watching to see if what is bound to be the long series of legal challenges to sentences obtained with Riverside County wiretap evidence can nonetheless bring more transparency than prosecutors have allowed defendants and the public thus far.