Tianna Arata’s defense asks SLO County judge to hold district attorney in contempt of court
Defense attorneys for two San Luis Obispo Black Lives Matter activists are asking a Superior Court judge to hold a county prosecutor and a state deputy attorney general in contempt of court over an alleged failure to turn over records as ordered by a previous judge.
The attorneys for local protest organizer Tianna Arata and fellow protester Robert Lastra Jr. are asking for a hearing Wednesday ordering the prosecution in their ongoing criminal cases “to show cause as to why they should not be held in contempt of this court and sentenced to fines and incarceration in the County Jail for failing to comply with this court’s ... order to produce discovery.”
A spokesman for the District Attorney’s Office declined to comment on the filing Friday. A request for comment from the Attorney General’s Office was not immediately answered late Friday.
The motion filed in San Luis Obispo Superior Court Friday by attorneys Patrick Fisher and Curtis Briggs accuse Deputy District Attorney Delaney Henretty and Deputy Attorney General William Frank of not providing them records showing how the prosecutors concluded that criminal charges were appropriate following a July 21 protest that blocked traffic on Highway 101.
There are several ongoing criminal cases, some with multiple co-defendants, involving local Black Lives Matter protesters over the July protest as well as a June 1 demonstration during which San Luis Obispo police fired tear gas to disperse a crowd.
In her case involving three co-defendants related to the July protest, Arata faces 13 misdemeanors, including false imprisonment and obstructing a public thoroughfare.
Lastra, who is facing a felony vandalism charge for smashing the back window of a BMW that struck one of his co-defendants on Highway 101, is scheduled to be in Superior Court Judge Rita Federman’s court Wednesday for a trial-setting conference.
Briggs said Friday that he’s asking Federman to address the contempt motion Wednesday, but he said it’s probable the matter could be set for discussion at a later date.
The protest-related cases have since been reassigned to Federman, who will also preside over Tuesday’s hearing in Arata’s case.
Federman is taking over the cases due to a routine rotation in the court’s judge assignments. Judge Matthew Guerrero, the previous judge presiding over the majority of protest-related cases, was assigned to family court in January.
DA shows ‘blatant disregard’ for court order, motion says
Before the reassignment, Guerrero granted a motion by Arata’s defense team to disqualify the county District Attorney’s Office from prosecuting the case, finding that DA Dan Dow had a “clear conflict” in the case primarily due to a re-election fundraiser email that appeared to reference the case, in addition to Dow’s outspoken activism for causes opposed to the Black Lives Matter movement.
The District Attorney’s Office as well as the state Attorney General’s Office, which would take over the case, have appealed Guerrero’s ruling to state Appellate Court, and the local Superior Court proceedings are largely on hold.
Guerrero had also granted the defense’s request for records from the District Attorney’s Office, supposedly turned over to Frank, that document the prosecution’s “decision-making process, such as internal memoranda and the correspondence and/or minutes of meetings between the prosecutor’s office and law enforcement personnel.”
But Guerrero warned the defense against being overbroad in the records they sought.
Fisher and Briggs said at the time they were seeking to find out how Henretty and the DA’s investigators concluded who to charge in the case, when there were upwards of 300 protesters who blocked traffic on the highway and their client denies having control of the group.
Those records, Fisher said in court at the time, would also reveal evidence collected against “similarly situated individuals (who) were not prosecuted.”
But in their filing Friday, Fisher and Briggs say they have not been provided such records.
The defense contends that statements by law enforcement and records released in response to public records requests from The Tribune reveal instances where records are being withheld from the defense.
They cite examples such as the SLO Police Department’s public statement that the decision to arrest Ms. Arata was made “in coordination with the District Attorney’s Office,” yet records of that coordination have not been produced, they say.
They also reference an email chain the District Attorney’s Office publicized in a news release in response to a Tribune record request for emails in which staff discussed a “division” among prosecutors in the District Attorney’s Office over how the agency should proceed in the racially charged case.
Though the agency refused to release the majority of emails containing relevant information, citing a legal exemption, it released one 8-page thread in which Henretty emailed his colleagues Aug. 7 and references a divisive meeting the previous day, expressing “disagreement with some of the sentiments that were expressed.”
Dow also comments in the thread, thanking Henretty and expressing his hope Henretty would “participate in the working group.”
“Mr. Henretty failed to turn over any minutes or documentation from this meeting, including any of the emails discussing this meeting that were released in the response to the (Tribune’s request),” the motion reads.
It continues: “Further, ... no documentation regarding any work group was turned over. The District Attorney’s Office was clearly having discussions about the Black Lives Matter protest after Ms. Arata’s case was referred by SLOPD on August 5, 2020, and likely immediately following her arrest, yet Mr. Henretty failed to turn over any documentation regarding these discussions which are relevant to the decision-making process” in the case.
The motion goes on to point out that the agency’s investigators were heavily involved in seeking out and interviewing witnesses and alleged victims, and one person named as a victim in the case has publicly accused those investigators of coaxing him into claiming he was victimized.
“ ... Once the District Attorney investigators began their investigation, they were apparently injecting statements and accusations in the mouths of alleged victims, but the discovery turned over does not include one email between DA investigators and attorneys in the District Attorney’s Office,” the motion reads.
The motion cites past Tribune reporting that in the weeks following the District Attorney’s Office receiving a San Luis Obispo Police Department recommendation for charges, including felonies, against Arata, SLO city and county officials were flooded with thousands of emails and voicemails demanding the case be dropped.
“It is hard to imagine a scenario where city officials could receive thousands of emails, including an email from the local pastor of the Methodist church, without this generating any discussion to and from the District Attorney’s Office regarding the decision to file charges,” the attorneys wrote. “It is equally unreasonable to suggest that the District Attorney’s Office could be inundated with tens of thousands of emails by supporters of Ms. Arata, including the dissemination of District Attorney Dan Dow’s address, without a single interoffice memorandum, or email being sent discussing the decision to file charges against Ms. Arata.”
The motion says that purpose of Guerrero’s order was to allow Arata and her co-defendants “the opportunity to assess whether a motion to dismiss based on discriminatory prosecution is warranted.”
“Ultimately, the District Attorney’s Office has taken the position that they can continue to prosecute this matter despite this court’s factual finding of a conflict of interest, and in doing so they can blatantly disregard the orders of this court,” the motion says. “Given Mr. Henretty’s continual blatant disregard for Ms. Arata’s rights to a fair trial, including failing to comply with this court’s order, his conduct warrants a contempt finding and a sentence of either fines and/or imprisonment in the County Jail.”
This story was originally published February 27, 2021 at 11:30 AM.
