A San Bernardino County judge has blocked part of a subpoena for two prosecution investigators involved in the case against San Bernardino City Councilmember Treasure Ortiz, who faces eavesdropping charges.
San Bernardino Superior Court Judge Michael Smith on Friday approved the San Bernardino County District Attorney’s office’s request to block the subpoena that required two of its investigators, Jorge Chavez and Darnel McDermott, to bring evidence and testify about it during Ortiz’s upcoming trial. However, he did not block a part of the subpoena requiring them to appear as trial witnesses.
Ortiz was not present at the Friday hearing.
Ortiz faces misdemeanor criminal eavesdropping charges for allegedly secretly recording conversations with police officers, including Police Chief Darren Goodman and San Bernardino Police Officers Association President Jose Loera, a police sergeant. She has pleaded not guilty.
The recordings involved police searching for information about her in a law enforcement database, which Ortiz claims was intended to discredit her before her City Council campaign. Prosecutors argue she violated California’s two-party consent law by recording these confidential conversations.
San Bernardino County Deputy District Attorneys Carlo DiCesare and Milena Miric argued to Smith that Ortiz’s attorney, Peter Schlueter of Schlueter Law Firm, was seeking additional discovery – the exchange of information between parties regarding witnesses and evidence to be presented at trial – by having Chavez and McDermott testify.
“I don’t have an ability to ensure that all reports, recordings, and the full investigation file is present in the courtroom with at least part of the chain of custody,” said Schlueter after Smith’s ruling.
“What I worry about is witnesses saying, ‘I don’t know, I’ve never seen that before,’ or ‘I don’t remember,’ and then it becomes very difficult to prove a point, and it becomes cumbersome,” Schlueter said.
This is the second attempt by Schlueter to file subpoena requests, with Judge Smith approving the DA’s office’s request to block the initial subpoena on July 10.
The DA’s Office argued in its motion to block the subpoena that its legal team had already turned over the investigators’ files to Ortiz’s lawyer for review. The DA’s motion to block the subpoena stated that “duplicative discovery from individual investigators is therefore unnecessary and unreasonably burdensome.”
On July 21, the DA’s Office filed a second motion to block the summons, again arguing that Ortiz’s defense team’s request was “duplicative discovery.”
In a court document submitted by Schlueter on July 31, he argues that the subpoena is not new discovery.
“It seeks only this: that the San Bernardino District Attorney investigators who collected the reports, recordings, transcripts, and physical evidence in this case attend trial and bring those materials with them,” the document read.
“What Mr. Schlueter is describing is just general cross-examination principles,” Miric said during the Friday hearing. She also said that Schlueter can refresh recollection or impeach with documents he has in his possession, which he can hand to the witness if necessary.
“It doesn’t have to come in from the witness themselves,” Miric said.
The next hearing, scheduled for Monday, Aug. 10, is to determine a trial location for the case.