Last month, for instance, former Livermore officer Daniel Black nearly went to jury trial, for misdemeanor charges that he engaged in lewd acts, solicited a prostitute, and furnished alcohol to a minor. Black was one of numerous Bay Area cops who sexually exploited the teenager known as Celeste Guap. According to prosecutors, records in Livermore’s possession also described previous allegations of criminal activity involving Black.
But Black never stood trial, and none of the records were made public. Instead, the Alameda County District Attorney agreed to a plea deal, which will allow him to expunge the incident from his criminal history after a year, if he does not re-offend.
Had the DA tried the case, proving Black’s guilt beyond a reasonable doubt would have been difficult. The materials the prosecutor was permitted to submit as evidence were tightly limited by Alameda County Superior Court judges Paul Herbert and Alison Tucher, following several motions by Black’s attorneys and City of Livermore’s attorneys.
The city threw up roadblocks to prevent both the prosecution and defense from obtaining and using information contained in its personnel records, and from police incident reports written by Livermore officers that responded to past incidents involving Black.
One example: On January 26, Deputy District Attorney Sabrina Farrell asked Herbert to hold hearings to review various records contained in Black’s personnel file and police records. Farrell had previously reviewed the records on January 19 and 20, during a visit to the Livermore Police Department, and felt they contained relevant evidence. The purpose of the closed hearing was to allow the judge to review the records and decide what could be used in the trial.
Livermore Deputy City Attorney Gabrielle Janssens objected to the closed court hearing, arguing that Farrell didn’t file the motion within the allowable time under the law, and that the DA hadn’t explained why the records were necessary for the criminal case.
Assistant District Attorney Sabrina Farrell had, in fact, explained to the city in a previous letter that the records were “related to Mr. Black’s alleged commission of similar sexual misconduct,” that had previously been investigated by the city through both internal-affairs investigations, and as criminal investigations by Livermore police.
As to why the DA’s motions were filed without giving Livermore the required sixteen days to respond, Farrell was forced to rush and request a shorter timeline because Black’s defense team surprised her by demanding a speedy trial.
Herbert allowed the closed hearing to review the records, but he also granted a protective order requested by Livermore. He wrote that the information could never be “used in any other civil or criminal matter.” The judge also sealed the transcripts of court hearings where records produced by the city were reviewed by the court.
The city also maintained its opposition to requests by the DA for various records in Black’s personnel file. These records included Facebook messages between Black and Guap, and witness statements by other Livermore police employees.
Later, when Tucher ruled on what specific evidence could be used in Black’s trial, Livermore sent an outside attorney, Claudia Leed of the law firm Stubbs & Leone, to attend the hearings and argue against allowing city information from being used at the trial.
According to records obtained by the Express
, Leed was hired by Livermore at a cost of $225 an hour, as part of a “comprehensive litigation management program” designed to “reduce litigation costs,” including potentially large judgments or settlements stemming from claims filed against the city. Leed is a former Oakland deputy city attorney.
Farrell objected to Leed’s presence after the city’s contract attorney had inserted herself into discussions between the judge, the defense, and prosecution. Tucher then dismissed Leed, but the city’s attorney continued to attend the pre-trial hearings.
Leed was previously a deputy city attorney in Oakland, and served as general counsel to the Oakland Police Department. Among her duties was defending the city during the Riders police scandal of the early 2000s.
Most recently, Livermore’s city attorney denied a Public Records Act request submitted by the Express
for police incident reports describing allegations made against Black by several women who accused him of sex crimes similar to the one he was on trial for in the Guap case. The incident reports were mentioned in court documents, and the allegations contained in them were mentioned, vaguely, in a court hearing by Farrell last October.
Farrell said in one report that a woman had accused Black of filming her while they were having sex, secretly and against her consent. Another incident report concerned “child abuse.” Yet another involved allegations that Black had sex with someone who was inebriated.
John Burris, an Oakland attorney who is representing Guap in her civil litigation against the municipalities that employed her exploiters, criticized Livermore’s decision to withhold the police reports from the media.
“It’s outrageous for them to have these documents and not produce them if they are requested in the appropriate manner,” said Burris. “The public has a right to know and should know if a police officer engaged in potentially illegal conduct.”
Burris said that Livermore is potentially liable under Monell, a U.S. Supreme Court opinion finding that municipalities can be sued if they are a party involved in the violation of someone’s civil rights. This can include situations in which a city employee with a past record of misconduct known to the city harms someone. “It means the city allowed him to stay on the job even though they knew about his conduct, and are potentially complicit and liable in his behavior.”
Charles Bonner, one of the attorneys who briefly represented Guap before Burris became her attorney, filed a $6 million tort claim against the City of Livermore on September 29 last year. Guap and her attorney Burris, however, have yet to file a formal complaint in civil court against Livermore, Oakland, Richmond, or any other municipality.
In an emailed response to questions from the Express
about why Livermore refused to release the police reports for previous allegations against Black, and the city’s efforts to block the DA from obtaining and using information in Black’s city personnel files in the criminal case, Livermore City Attorney Jason Alcala said that the city “prides itself in processing and producing records in response to public records requests.”
But Alcala said the city opposes all efforts to obtain police department personnel records. “This is because there are specific statutes that protect that information and require a formal motion before that information can even be viewed by the Court, let alone released from a file.”
However, Alcala did not answer questions about the city’s attempt to strike all mention of those incidents from the court record and motions. “I don’t believe it is appropriate to answer your questions as you have stated them,” Alcala wrote to the Express
, adding that “they are designed to confuse listeners, and possibly the person answering the questions, into tacitly accepting something suggested in them that isn’t necessarily true. Therefore, the only answer I can provide to your specific questions is ‘no comment’ because I don’t agree with the suggestions in them.”
Police unions lobby legislators and fight legal battles to keep information about police misconduct secret from the public. This is how it’s worked for years. But recent actions by the City of Livermore demonstrate how local governments also work to shield cops from public scrutiny — not to protect police officers, but, rather, to limit the city’s liability when problem officers snap.