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9th Circ. Upholds Dismissal of DA’s Fight Against Successor

The Ninth Circuit on Thursday affirmed the dismissal of a lawsuit involving two Northern California district attorneys – ending at long last an often tawdry five-year legal fight between the two men.

SAN FRANCISCO (CN) – The Ninth Circuit on Thursday affirmed the dismissal of a lawsuit involving two Northern California district attorneys – ending at long last an often tawdry five-year legal fight between the two men.

In affirming the dismissal, a three-judge panel said probable cause existed that former Del Norte County district attorney Michael Riese drove under the influence of a drug the day he went to a Safeway supermarket in Crescent City in 2011. Witnesses observed Riese sitting on the floor opening packages and at a checkstand trying to slide his credit card into the change return machine.

"The record before the court on summary judgment established that there was a fair probability that Riese drove while under the influence, and no fact issue on particular parts of the evidence raised a genuine dispute on the conclusion of probable cause as a whole," the panel concluded in an unpublished memorandum opinion.

Riese claimed he became disoriented at the store as a side effect of the Vicodin 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.

Nonetheless, Riese was charged in 2011 with DUI, child endangerment and public intoxication. He was acquitted on all three counts the following year.

After his trial, Riese sued Jon Alexander – who had unseated him as district attorney in 2010, and who had worked below Riese in the district attorney's office – on claims of malicious prosecution and fabricating evidence in the criminal case. He claimed Alexander pressured prosecutors to file charges in retaliation for reporting Alexander to the State Bar and then firing him.

Alexander, a recovering methamphetamine addict who used the slogan “Death to Meth” in his campaign to unseat Riese, was put on probation and eventually disbarred.

U.S. District Judge William Orrick dismissed Riese's case a year later, noting he had failed to overcome the fact that police had probable cause to arrest him because of his erratic behavior at Safeway. The appellate panel agreed.

"There is no genuine dispute as to the controlling material fact that Riese’s prosecution was supported by probable cause to think that he was guilty of the crime charged," the panel wrote. They pointed to an investigative report written by Crescent City Police Detective Keith Doyle, which contained "substantial" evidence Riese had driven under the influence.

Doyle’s report included testimony from responding officers and Safeway employees that Riese said he had taken Vicodin, could barely walk, was slurring his speech and seemed, according to Doyle, "extremely under the influence.”

The report also suggested Riese had driven during that time – he picked up his children from daycare, where the employees said he drove "crazy" and ran over the facility's solar lights. He later parked his truck at Safeway across four parking spaces.

In pushing for reversal last month, Riese’s attorney Mary Lehman told the panel that probable cause couldn’t be established on the DUI claim against Riese because “the key element is actual driving,” and the only witnesses who saw Riese driving the day of the incident were his children’s daycare providers, 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.

Alexander’s attorney Sara Allman disagreed, noting Riese had 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."

The appeals panel said Thursday the conflicting accounts didn't change the district court's finding.

"Even if some of the evidence is disputed or conflicting, and indeed some of this was hearsay, that does not preclude a conclusion that 'probable cause,' as opposed to definite guilt, existed as a matter of law," the panel wrote.

In an email Friday, Alexander said through his attorney Allman that he’s pleased with the Ninth Circuit's decision.

"It was always my philosophy as district attorney that no one was above the law, and taking cases to trial never intimidated me," Alexander said through his attorney.

Alexander was also represented by Ann Asiano with Morris, Polich & Purdy in San Francisco.

Lehman, Riese’s attorney, could not be reached for comment.

The panel included Circuit Judges Richard Clifton, Ronald Gould and Paul Watford.

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