Leary motion to quash debated;
judge calls it 'critical' to the case

Leary motion to quash debated; judge calls it 'critical' to the case by Thom Nadeau of Notable trials Pre-trial hearings are u...

Leary motion to quash debated;
judge calls it 'critical' to the case

by Thom Nadeau
of Notable trials

Pre-trial hearings are usually ho-hum, but what the courtroom jousting revealed Thursday in People v. Leary ranged from the dull to the disturbing.

Former sheriff’s Lieutenant Michael Leary faces six criminal counts arising from his stormy relationship with notary public Alyc Maselli and fraud and other allegations she brought in connection with a change of title for a $610,000 residence at 3301 Marina Cove Circle, Elk Grove.

Maselli claims she shared the property title and was paying her portion of the mortgage.

Moreover, in the course of their relationship, Maselli made domestic violence claims that included allegations of kidnapping and false imprisonment. No charges were filed after sheriff’s investigators concluded her claims were unfounded.

Leary, 50, counters Maselli’s claims of ownership by saying he only added her name as a secondary on the title because he mistakenly believed she could not live there unless he did so.

She was a tenant, he insisted, not an owner. Besides, she ceased paying her rent months before the mess erupted and the checks she claimed were for rent were in fact checks to herself for cash she kept.

And you ain’t heard the half of it yet …

The legalities of this case are further complicated by the several layers of personal rights and bureaucratic job protections that unionized cops enjoy, above and beyond those the few the public is generally allowed.

Against that backdrop, the Thursday hearing on the defense motion to quash opened with citations involving special procedural protections afforded to peace officers, including the Public Safety Officers Bill of Rights (POBR) and the so-called Lybarger Warning.”

Boiled down, the defense motion to quash was based on the assertion that department investigators did not come clean with Leary when they portrayed their probe into Maselli’s claims as merely an “administrative examination” rather than a criminal investigation.

Make that investigations, since it emerged from the questioning of witnesses by both Deputy District Attorney Michael Brazini and defense attorney William Portanova, that Leary was the subject of four investigations: two administrative and two criminal.

The first pair of administrative and criminal probes related to Maselli’s kidnapping claims; the second pair related to the allegations Maselli made in the property ownership dispute.

Portanova argued to Sacramento County Superior Court Judge Ben Davidian that failing to Lybarger Leary meant any statements he may have made in that interview should be declared inadmissible at trial.

Lybarger is a 2009 California Supreme Court ruling that while a public employee may be compelled “by threat of job discipline” to answer questions about misconduct so long as he or she is not forced “on pain of dismissal” to waive Fifth Amendment constitutional protections against any criminal use of the answers.

To justify including the statements at trial, Brazini put on two witnesses, Sergeant Todd Thiassen, working out of the Internal Affairs Bureau downtown and Detective Mark Freeman, who investigated real estate fraud cases from an outpost on Orange Grove Boulevard.

Thiassen described how, assisted by a couple of cops from the Special Investigations Bureau, he started looking into the Maselli’s complaints for possible administrative penalties, only to be told that a separate criminal investigation had been instituted.

Thiassen testified he then set aside his investigations pending the outcome of the criminal investigation. He admitted, however, that he kept tabbed on the progress of the criminal cases.

Meanwhile, Freeman separately undertook an investigation into Mazelli’s real estate fraud allegations.

Portanova argued that these two different investigations – administrative and criminal – became inextricably wedded and, thus, inseparable. No, Brazini countered, the two were clearly separate matters.

Or – as Judge Davidian described it as he mulled the case before him – over the course of some six months the two ropes of the probes somehow became “braided together” – or not, depending on whether the source law agreed with the defense, or the prosecution.

The key event in the question of adequate warnings or not, came in a May 22, 2009 meeting with Freeman when Leary (who was universally described as cooperative) showed up for an interview with Freeman with a lawyer in tow.

A recording of that hour-and-a-half meeting was offered as evidence, with both sides urging Davidian to view it. Portanova and Brazini, both seemed to think that, if the judge would only view it he would decide their side was correct.

Besides criminal cases, Davidian also handles violation of probation (VOP) hearings that run into after hours. That means his court hours are slightly different from other judges with his day usually beginning at 10:30 a.m.

Davidian said he would take the recording home and view it sometime between Friday and when People v. Leary, #09F07685 resumes Monday.

No ruling is expected until after that.

Proponents from a McGeorge School of Law women’s issues group were in Davidian’s court Thursday on a separate action they would like the judge to take in the Leary matter.

They want Davidian to exclude from evidence information Leary wants to present, evidence that would allegedly show how loony and yet, at the same time, how vicious and vindictive Maselli could be.

Maselli has so far remained invisible in the proceedings, except as a party of reference.

Portanova suggested their issue would be best taken up next week. Davidian and the group dickered.

The judge agreed. Calling the issues raised by the motion to quash as "critical," he suggested perhaps next week would be better for scheduling purposes, perhaps on Wednesday. He told the college group that his office call them with a firm time.

Leary was booked and arraigned in October 2009 on charges of grand theft fraud and forgery stemming from the transfer between himself and Maselli in 2006.

He has pleaded innocent to all charges. If convicted, he could be sentenced to five years four months in state prison and fined $75,000. He remains free on bail.

Leary, a former Elk Grove City Council member and community services director, was with the sheriff’s department for 27 years before losing his high-ranking post when he was arrested.

If he is found innocent of all charges, he said, he plans to reclaim his departmental position and collect all his back pay.

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