WINNEMUCCA — The battle over evidence in a drug trafficking case continued Monday (March 22)  in 6^th Judicial District Court as the defense again questioned whether there has been fair and open access to evidence in the case.

The defendant, Ramiro Gutierrez, 30, was arrested last March on two counts of trafficking in a controlled substance/methamphetamine level III. He was scheduled to go before the jury on March 30, but the trial was delayed due to a medical emergency with one of the primary participants.

CASE HISTORY:  The defendant’s attorney, Robert Hager, has attempted to have the case dismissed over claims his client’s ability to get a fair trial was prejudiced by the conduct of the investigators and the Humboldt County DA’s handling of the evidence.

In a motion filed with the court, Hager argued detectives from the Department of Public Safety – Investigation Division (DPS) contrived the investigation so as to arrest Gutierrez and protect his girlfriend.  In addition, Hager claimed the state had evidence of her alleged illegal conduct, but that evidence was never turned over to the defense. He noted the DPS investigation involved the girlfriend’s home and he further alleged it was the girlfriend involved in selling drugs at the residence.

Hager claimed the girlfriend was protected because of who her father is --  the Juvenile Court Master who -- on occasion -- has filled in for Drug Court.  All that, claimed Hager, represented outrageous government conduct; conduct so shocking to the universal sense of fairness the case must be dismissed.

However, as was noted by Chief Deputy DA Brian Williams in his reply, there is no case law in Nevada for the consideration of outrageous government conduct, which came out of a decision from the 9^th Circuit Court of Appeals.  While the United States Supreme Court has danced around the issue, to date they have declined to tango.

JUDGE’S RULING:  Judge Michael Montero denied the motion to dismiss without hearing arguments from the attorneys.   In doing so, he said the conduct of the state did not rise to the level that shocked the universal sense of fairness.

“The court is not going to get into what degree that any misconduct occurred,” Montero said.  “I’m not going there; I’m not finding that.”

He also noted as the outrageous conduct decision came out of the 9^th Circuit Court of Appeals, it’s not binding in Nevada.

“The defendant’s motion is denied,” he said.

An incredulous Hager continued and asked the court for an opportunity to address the issue; a request Montero denied but which did not prevent Hager from moving forward. 

Over the objections of the judge, Hager reiterated his positioin that evidence was being withheld from the defense.  He pointed to a statement written by the lower-court judge indicating he was told by detectives about alleged ongoing criminal conduct of the girlfriend.

The statement by the justice of the peace was found in the probable cause statement written in support of the search warrant that resulted in the arrest of Gutierrez.  Hager wanted the evidence behind that statement, since it showed there was someone else involved in illegal conduct other than his client, or the case should be dismissed.

Montero reminded defense counsel he was aware of that information because it was included in the motion to dismiss, which had been denied.  The judge commented, “Mr. Hager, I’ve denied the motion. What part of this do you not understand?”

Ultimately, Hager asked the judge for the decision in writing so he could file a writ with the Nevada Supreme Court on the judge's decision.

THE CONFIDENTIAL INFORMANT’S FILE:   The case against Gutierrez hinges on a Confidential Informant (CI) working for DPS – whose representatives created a file of information on the work of the CI and the information gathered during the investigation.

The CI’s file has been the subject of ongoing conflict between the defense and DA’s Office.  Hager claimed initially the file was being withheld. Then, after receiving the file, he claimed too much information had been redacted. 

Redacting information is the process of blacking-out information not open to public scrutiny. The prosecutor may redact information that, for example, concerns ongoing investigations.

Due to the dispute over the redacted information, the file was turned over to Judge Montero for review. Montero ruled the redactions were appropriate as they did not contain information about the defendant, his girlfriend, or the case.

Hager protested and counter-argued anything in the file that wasn’t privileged; that is, relating to an ongoing investigation, he had a right to possess. He explained the importance was his ability to investigate the file for information that might lead to evidence of his client’s innocence.

Chief Deputy DA Williams noted there was privileged information in the file. While the DA’s Office waived their privilege to information relating to the investigation of Gutierrez and his girlfriend, they did not waive privilege to everything in file. As an example, Williams pointed out the CI may have given names to DPS during the course of the Gutierrez investigation, but those names never lead to criminal prosecutions, so the names are privileged information.

Hager disagreed.

“To suggest that because the information in the CI file doesn’t specifically relate to the defendant or to (his girlfriend) that I’m not entitled to it is absolutely not the law,” he said.

In the end Judge Montero ordered the DA’s Office to create a privilege log, which would require Williams to document the law that allows that office to redact information in the file.

Previous news accounts on this topic: 

Attorney attempts to have case dismissed claiming conduct of investigators was outrageous