An outside special prosecutor hired to press a felony criminal charge against suspended Mendocino County Auditor Chamise Cubbison is joining defense attorneys in questioning conflicting County accounts surrounding internal emails, and how they might jeopardize the high-profile case.
In letter dated July 15, Contract Prosecutor Traci Carillo said as the case nears a long-awaited preliminary hearing – scheduled to begin on Thursday July 25 – “significant complications” cloud evidentiary issues surrounding the alleged misuse of public funds case.
Carillo said there is no doubt in her opinion that the county’s zig zagging on providing hundreds of emails surrounding the possible role of retired County Auditor Lloyd Weer must be cleared up before a preliminary hearing can proceed.
Superior Court Judge Ann Moorman on Tuesday will hear prosecutor Carillo’s concerns, and those of defense attorneys during a special follow up on a motion to continue this week’s preliminary hearing.
Last week Moorman expressed her displeasure when she learned the reasons for defense attorneys seeking a second delay in high profile case finally moving ahead.
“It is not fair to Ms. Cubbison, Ms. Kennedy or the public to have the case linger like this,” said an exasperated Moorman.
The criminal case alleging misuse of public funds revolves around $68,000 in extra pay to former county Payroll Manager Paula June Kennedy, using what District Attorney David Eyster contends in court documents was an “obscure payroll code.”
Eyster’s criminal complaint filed last October claims Weer and Kennedy pointed the finger at Weer’s then-assistant Cubbison. Cubbison in turn says the extra pay deal was struck between Kennedy and Weer while he was still in charge of the office.
Cubbison attorney Chris Andrian said Saturday he believes if the case goes to trial, he will be able to show that Weer was “right in the middle of all this,” despite Eyster singling out Cubbison for criminal prosecution.
As it is, a web of intrigue has enveloped the case in recent weeks as the prosecution and defense narrow the focus on how the county IT department managed thousands of emails stemming from the 2020 implementation of a new email archive system. Three years later it was discovered that the new system “suffered significant database corruption” and no longer allowed for search of emails written when the extra pay issue began to unfold in 2019.
Further, when the County ramped up a new archive, IT manager Tony Rakes said in a sworn 2023 statement that not all the emails from 2020 and afterward, including those of former Auditor Lloyd Weer, were preserved.
Then last month, prosecutor Carillo said she unexpectedly learned that in fact a Sheriff’s investigator had retrieved emails from Weer as well as Cubbison and Kennedy from that era.
The question now is how defense attorneys will know if they are seeing all the emails that may be relevant to the controversial case.
Carillo, Andrian and Public Defender Mary LeClair, who is seeking a continuance on behalf of Kennedy, suggest that it is unclear and could prove costly if a “Special Master” must be brought in to sort out the evidentiary confusion the thousands of recovered documents might present.
In the backdrop of the highly charged case is a bitter struggle between DA Eyster and Cubbison over Eyster’s own office spending, and his successful bid to block her appointment as Interim Auditor when Weer left office early. Voters elected Cubbison as County Auditor in 2022 despite opposition from Eyster and County supervisors.
After Eyster filed criminal charges against Cubbison last October, the County Board of Supervisors rushed to suspend her without benefit of a hearing. Cubbison, in addition to fighting the criminal charges, filed a civil lawsuit seeking damages from the County Board for denying her due process.
Since Cubbison’s arrest Weer has withdrawn publicly and he has refused to respond to repeated requests for comments on his role in the case.
Prosecutor Carillo, hired by Eyster in March at a rate of $400 per hour after he backed away from the Cubbison case, put the brakes on after learning of the existence of the emails defense attorneys had been told did not exist.
“Based on the inconsistency of information about the lack of records identified by Mr. Rakes and the potential existence of records as accessed by law enforcement investigators, I advised (them) to take no further action so that I could further evaluate the best course of action,” wrote Carillo.
Carillo said a hastily called meeting on July 2 was conducted in the DA’s office with the two defense attorneys, Sheriff Lt. Andrew Porter, defense investigator Chris Reynolds, and Andy Alvarado, the DA’s chief investigator.
They agreed on a search criterion to “further identify and isolate emails” that appeared relevant to defense subpoenas and included those of former Auditor Weer.
A total of 1,358 emails were “tagged” and retained after the agreed upon search criteria was used.
Carillo informed county attorneys that she intends to turn over the recovered emails on Monday even though she has yet to determine if there is any relevancy.
“The problem now exists that a county official declared they did not exist when they clearly do,” said Carillo.
Carillo said DA Investigator Alvarado was to provide the county’s attorneys copies of the retrieved emails so that “you have an opportunity to review and object if you believe there is material that should not be turned over for some reason.”
Carillo said, however, she will personally “review all of the emails in our possession to satisfy my own ethical responsibilities in this case and will turn over all that appear relevant, material or otherwise fall under Brady concerns regardless of County objection.”
“I am hopeful we can work together to resolve this issue,” urged Carillo’s letter to the San Francisco law firm of Liebert-Cassidy-Whitmore.
If not, Carillo warned that “I foresee this becoming expensive and complicated if the County has objections to turning over these emails.”
It might require the County to implement a “Special Master” to personally review the thousands of retrieved emails, according to Carillo.
“I would prefer that we simply all work together and sign a protective order that protects all parties’ rights and interests while providing a defense counsel with the emails in their entirety so that they can do their own due diligence for their respective cases,” Carillo concluded.
It’s already “becoming expensive and complicated”, and with civil lawsuits yet to come.
No foresight required.
Russia, if you’re listening, I hope you’re able to find the 1,358 emails that are missing. I think you will probably be rewarded mightily by our press. Let’s see if that happens.
Missing emails, special masters…. it all seems quite theatric. But it keeps people from asking “why were these charges even filed in the first place?”