Moments after Pasquale Rotella accepted a plea deal in his four-year-old corruption case, I approached LA County District Attorney Public Information officer Jane Robison to ask about allegations that prosecutors in the Public Integrity Unit had mishandled evidence. Robison told me the DA’s office would not be commenting because it was still an open case, so I pointed out that Rotella’s case had just been settled and was now closed.
“At what point will the DA’s office explain how it blew this case?” I asked.
She did not like hearing that, and followed me out of the courtroom and handed me a copy of the original indictment, telling me “Mr. Rotella was only charged with two counts. This plea deal only dealt with those counts,” implying that Pasquale’s involvement only represented a small part of the case.
That’s nonsense. Why? Rotella was facing three to six years in prison on the two outstanding charges, but the DA’s office had so badly stored and mishandled evidence that it was forced to offer Rotella a plea agreement with no jail time and a $150,000 payment (“not a fine” his lawyer Gary Jay Kaufman pointed out) to the LA County Treasurer. His co-defendant Reza Gerami also received zero jail time and agreed to make a $30,000 payment. The LA Times had some pictures from the hearing, which you can see in the tweet below.
After 'very embarrassing' blunders, prosecutors offer no-jail deals in L.A. Coliseum corruption case https://t.co/bnOpg8u1WR
— Ron Lin, LA Times (@ronlin) August 5, 2016
There’s one very obvious reason that Rotella got a no-jail deal and it’s because prosecutors knew they would be badly embarrassed by the public scrutiny that would follow if their mishandling of evidence was further adjudicated. Not only are the past convictions won by the Public Integrity Unit now potentially tainted, but the DA’s office doesn’t appear to have basic protocols in place for dealing with electronic evidence.
Here’s what we know — last year, Deputy DA Dana Aratani was removed from the Coliseum case after admitting he had viewed privileged emails between Rotella and Kaufman. In a raid, LA police seized 30,000 emails and Aratani had come up with a system for “randomly” viewing the emails causing him to “accidently” view emails he wasn’t supposed to see. When Kaufman found out, he filed a motion to have the case dismissed — as a compromise, Judge Kathlene Kennedy instead took Aratani off the case and told replacement Deputy DA Terri Tengelsen that she was to create a “firewall” within the division and not have any communication with Aratani or utilize his work, beyond interview transcripts.
Last week, Tengelsen admitted that she did have conversations with Aratani about the case and that her office was still in possession of privileged emails between Kaufman and Rotella. When Judge Kennedy learned of the allegations she muttered “Oh my God” in open court.
Defense attorneys Colin Hardacre and Jonathan Genish were tipped off about the misconduct after Tengelsen published a list of potential exhibits along with a box of printed documents. As attorneys for Rotella went through the documents, they found one that was “highlighted in the exact same place as the version Mr. Aratani had on his exhibit list, indicating that it could only have come from Mr. Aratani’s work product.”
The DA’s office was once more caught breaking rules about evidence and doing a sloppy job on a high-profile case. In both instances, Aratani and Tengelsen were caught because of evidence they had given to the defense — evidence that would be used against them showing that the DA’s office had used files they said they wouldn’t use, files highlighted by Aratani.
Think about that for a second. Rotella and the other defendants are getting off because of a highlighter. A case that had lasted half-a-decade and involved over a dozen lawyers and hundreds of thousands of dollars, maybe millions, in taxpayer money. All derailed over a matching highlighter.
Making things worse is that everyone saw it coming. In a June 2015 hearing, Judge Kennedy outlined a system for identifying tainted documents and created a plan for how Kaufman would monitor the case and what would happen if tainted evidence found its way into the DA’s files.
“Let’s say they come up with some kind of a list of exhibits and witnesses,” Kennedy told Kaufman, “and you read that and you’re like, oh, this is like what Mr. Aratani had. I guess we’ll have to have some other kind of hearing.”
Kaufman responded “Or there would be a motion,” adding that if he discovered a document in which “the only way they would have knowm about that is from a review of attorney-client privileged documents,” the court would have to come up with a way to once more deal with prosecutorial misconduct.
“If somehow any of those exhibits ended up on a list,” Kennedy responded, “we’d be in a wholly different situation.”
When attorneys for Rotella discovered that the DA’s office had used tainted documents — files they had told the DA they would be looking for — Tengelsen was called before the court to explain how her team was handling electronic evidence. She admitted her unit was still in possession of privileged emails between Kaufman and Rotella, but swore she never looked at them.
At one point, Tengelsen tried to deflect and asked Kaufman if he was confusing the evidence with a thumb drive storing other information, to which Kaufman responded “I am not confused about that, that has nothing to do with what I am saying,” later telling the court “someone from (the DA) office knows about it because I have the physical documents” that are “like DNA. We got it. And we know they have attorney-client privileged (emails) and I want to do something about it because I don’t want to go to trial with the prospect of guessing what evidence they’ve gotten from my client’s communications with my office.”
What followed was a heated hearing with Tengelsen and her main investigator admitting that they had little to no policies in place for dealing with protected information. I wasn’t in attendance at either hearing, but we have ordered the transcripts from the July 25 and July 29 hearing and once the court reporter completes them, we will publish them.
Tomorrow a new evidentiary hearing is planned and Tengelsen and Aratani, along with DA investigator Edgardo Labayna and Marian Thompson, the DA within the Public Integrity Unit that still has the privileged emails in her possession, are expected to testify further about the mishandling of evidence. The hearing won’t happen if both sides reach a plea deal on Todd DeStefano, the sole remaining defendant in the case.
The three defendants still face a civil lawsuit but the threat of a criminal sentence is now behind them. Rotella’s wife Holly Madison is expecting the couple’s second child as soon as this weekend. Rotella wasn’t able to comment after court, but his representatives at Insomniac did release the following statement.
“I always knew the charges were politically motivated and publicly driven. While it’s taken too long to finally put this behind me, I can now focus my energy where it belongs: my family and my company. Thank you to everyone who has supported me through this.”
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