DA Feud Fizzles for Lack of Evidence, Judge Rules

SAN FRANCISCO (CN) - A former prosecutor cannot pursue constitutional and malicious prosecution claims over run-ins arising from an ongoing feud with his successor, a federal judge ruled.

Michael Riese, the former district attorney for Del Norte (Calif.) County sued the county, its sheriff's department, then-District Attorney Jon Alexander, Crescent City and its police department and five other people in federal court in 2012. Riese claimed the defendants maliciously prosecuted him, fabricated evidence, and conspired to issue a warrant based on false allegations, offering to help Riese's ex-wife avoid penalties for violating a court order if she lied to a grand jury.

But the trouble began years before, when Riese had Alexander fired from his job as deputy DA for an alleged ex parte communication with a judge. Alexander, who is also a recovering methamphetamine addict, has denied the note was meant for the judge's eyes only but faced disbarment over the incident.

Despite Alexander's disciplinary troubles, he unseated Riese as district attorney in 2010. After that, Riese claimed that Alexander launched a campaign in the local papers to smear his former boss - reporting that Riese was under criminal investigation after suffering a supposed medical emergency at a Safeway supermarket in Crescent City.

While Riese said that side effects of medicine made him fall asleep at the store, Alexander seized on the opportunity and orchestrated an effort to "harass and wrongfully prosecute Riese to further a personal vendetta," according to Riese's original complaint.

Riese claimed that Crescent City police officers repeatedly stopped him, pulled him out of restaurants and shops and administered field sobriety tests in an effort to catch him drunk. Law enforcement also carried out a search warrant of Riese's home looking for drugs, on grounds that Riese's girlfriend worked for a doctor's office and had access to prescription pads, according to the Riese's lawsuit.

Last year, U.S. District Judge William Orrick found that Alexander had state-law immunity from claims that he maliciously prosecuted Riese and fabricated evidence. And earlier this week, Orrick found that Riese "has wholly failed to identify specific facts showing a genuine issue for trial" against the other defendants, and dismissed the case.

"In opposition to the defendants' motions for summary judgment, Riese has submitted a jumble of conclusory allegations, unsupported assertions, confusing and incomplete cross-references to other opposition briefs, and cites to existing and nonexisting declarations (perhaps tellingly, with pincites left blank)," Orrick wrote in the 28-page order.

The judge noted that Riese failed to overcome the fact that police had probable cause to arrest him for DUI, child endangerment and public intoxication because of his condition at Safeway, where surveillance video showed a disoriented Riese sitting on the floor opening packages and at a checkstand trying to slide his credit card into the change return machine rather than the adjacent PIN pad.

Additionally, Riese never showed how law enforcement or Alexander tampered with the video evidence of the Safeway incident or willfully left out the part where he entered the store completely sober when Alexander played the tape at trial, Orrick said.

And while Riese had argued that Alexander could not hide behind federal immunity for malicious prosecution because he denied prosecuting Riese at all after recusing himself, the judge said that accepting that Alexander had indeed left the case defeated that argument.

"If Riese accepts Alexander's contention that Alexander did not institute or prosecute the criminal prosecution of Riese, then Riese has gutted his claim for malicious prosecution by conceding that the first element is missing: that Alexander initiated a criminal prosecution against Riese," Orrick wrote. "On the other hand, if Alexander instituted or prosecuted the criminal prosecution of Riese, as required for a claim of malicious prosecution, then the claim is barred by Alexander's absolute immunity for conduct within the scope of his prosecutorial duties."Orrick cited state and federal precedent, noting that the probable cause officers possessed to arrest Riese at Safeway is "an absolute defense to malicious prosecution."

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