By HELEN CHRISTOPHI
SAN FRANCISCO (CN) – A Ninth Circuit judge said Monday that although a disgraced former California district attorney might win a case accusing him of trying to frame his old boss for drunken driving, the former DA’s behavior was “reprehensible.”
“This case should never, ever have been brought in the first place,” Circuit Judge Paul Watford said at a hearing Monday over criminal charges filed against former Del Norte County District Attorney Michael Riese.
The charges for DUI, child endangerment and public intoxication were brought in 2011 after Riese was found acting erratically at a Safeway supermarket. Riese claimed he became disoriented at the store as a side effect of medication he had taken for a knee injury, and that the responding officers and the store manager concluded he wasn’t under the influence of alcohol or narcotics.
Reise was acquitted on all three counts in 2012.
Later that year, Reise sued Jon Alexander, who had unseated him as district attorney in 2010, for malicious prosecution and fabricating evidence in the criminal case. He claimed Alexander pressured prosecutors to file charges as payback for allegedly reporting Alexander to the State Bar and then firing him.
Alexander, a recovering methamphetamine addict, was put on probation and eventually disbarred.
Pointing on Monday to Alexander’s attempt to pursue another case against Reise following the acquittal “on even weaker facts,” Watford questioned Alexander’s motivations toward his former boss.
“It suggests your client really did have a vendetta against his man,” Watford told Sara Allman, Alexander’s attorney. “I think your client’s conduct was reprehensible, personally.”
Despite Alexander’s actions, U.S. District Judge William Orrick ruled in 2013 that the former district attorney had prosecutorial immunity.
A year later, Orrick dismissed the case entirely, noting that Riese had failed to overcome the fact that police had probable cause to arrest him because of his condition at Safeway. Store 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.
In pushing for reversal Monday, Riese’s attorney Mary Lehman told a three-judge panel that probable cause couldn’t be established on the DUI claim against Reise because “the key element is actual driving.”
According to Lehman, the only witnesses who saw Riese driving the day of the incident were his children’s daycare providers when he picked them up, four hours before he went to Safeway.
And although a Safeway employee told investigators Riese parked his truck in the store’s parking lot so that it straddled four parking spaces, suggesting he was intoxicated, a police report noted the truck was parked normally, Lehman said.
That, combined with evidence that Riese was acting normally when he entered the store, proves he became disoriented only after going inside, she added.
“We have to look at the totality of the evidence, and it only says he was driving four hours before,” Lehman said. “The childcare people, if they thought he was truly intoxicated, they wouldn’t have released the children to him.”
Allman disagreed, noting that Reise asked one of the responding officers if he could put his purchases in his truck parked in Safeway’s lot – proving he had driven nearer to the time of the incident. Allman also said the way Riese parked his truck ” is not something a sober driver does.”
Riese initially told officers he had driven to Safeway but then changed his story, saying he had parked four blocks from the store and walked there, according to Allman.
“I think there clearly was probable cause here,” Allman told the panel. “Clearly if Officer Lo observed him place the bread in his truck in the parking lot, he did not park four blocks away.”
In a July 2015 brief to the Ninth Circuit, Reise said Orrick was wrong in finding Alexander had prosecutorial immunity. Although he hadn’t acted as the prosecutor in the case, Alexander had pressured prosecutors to pursue the charges.
Alexander countered in a brief the following October that Riese failed to show he initiated the prosecution or directed the attorney general’s office to prosecute.
Circuit Judges Richard Clifton and Ronald Gould joined Watford on the panel. The court did not indicate when it will rule.