Officer caught with pot allowed to testify against others
on December 8, 2014
In a trial this fall, Richmond Police Officer Joe Avila, a 17-year-veteran of the force, served as a star witness for prosecutors hoping to secure a conviction in a case they had built over a period of 10 days in a Contra Costa County courthouse.
The trial’s defendant, represented by Deputy Public Defender Elise McNamara, was found guilty, largely on the strength of Avila’s account.
“[Avila’s] testimony was the main evidence,” McNamara said.
But several days earlier, unbeknownst to McNamara, a search warrant had been ordered and executed at Avila’s Oakley home. It had turned up plastic bags filled with marijuana, stashed in a gun case.
And though the Contra Costa County District Attorney’s Office ordered the search of the Avila’s home on Sept. 23rd, it had revealed nothing of the investigation into the officer’s alleged mishandling of drugs to defense attorneys.
According to McNamara, prosecutors’ failure to turn over that information was an ethics violation.
“They have a constitutional mandate to disclose exculpatory evidence to us prior to a trial,” McNamara said. “If there’s an officer on the case who’s been discredited, then we have the right to know that.”
According to the search warrant, a Richmond Police Department internal affairs investigation into Avila was opened in January, when it was flagged that he had neglected to file follow-up reports on at least 37 calls for service.
On one of those calls, Avila had collected roughly 5 lbs. of suspected marijuana from a UPS Store and failed to turn the cache over to the department’s evidence vault. The seizure was never logged and the drugs disappeared, according to the search warrant.
Investigators began to work the case in early September, around the same time McNamara’s client went to trial. Avila was placed on paid administrative leave that month as well, the Contra Costa Times has reported.
Though McNamara knew none of this at the time, her client had separately flagged Avila as suspicious. His accusations had prompted her to request extra background detail on the officer during the trial’s discovery phase.
“There were some issues in the case,” McNamara said. “I made numerous inquiries with the DAs.”
When initial requests came up empty, McNamara went so far as to file what’s known as a Pitchess Motion, an action specifically designed to root out information on a law enforcement officer who’s alleged to have engaged in misconduct.
That effort too yielded no disclosures.
“I exhausted the discovery process,” McNamara said.
Her client was convicted. Shortly afterwards, news of Avila’s suspension broke.
In the two months since, Contra Costa County Chief Public Defender Robin Lipetzky has gone through her office’s files and found several other cases where Avila was a key witness, that she thinks deserve a second look. She has asked district attorneys for help in identifying others, but to no avail.
“The DA’s office is taking the position that this officer did nothing wrong. And because they think he did nothing wrong, they are not turning over any information,” Lipetzky said.
According to the search warrant, Avila has said that he squirreled away his reserve of marijuana to train his K-9 police partner, a dog named Bosco.
District attorneys have not filed criminal charges against him.
“They are cutting him some slack because he’s a police officer. Anybody else found with 5 lbs. of marijuana in their possession, I don’t care who that is, that person is going to be charged with a crime,” Lipetzky said.
According to Lipetzky, Avila’s case should be turned over to the state’s Office of the Attorney General. District attorneys, she said, cannot be objective or independent third parties when local law enforcement partners are implicated.
“They have a vested interest in not having an officer’s credibility called into question, because then it impacts all the cases they’re trying to prosecute,” Lipetzky said.
The Contra Costa County District Attorney’s Office did not respond to multiple requests for comment and the Richmond Police Department couldn’t provide any update on prosecutors’ investigation into Avila.
“The DA’s office is a separate entity and they move at their own pace. We can’t control them or give them any direction,” Richmond Police Lt. Andre Hill said. “[Avila] is still on paid administrative leave.”
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