District Attorney David Eyster’s high profile criminal prosecution of the elected Auditor of Mendocino County ground to a halt Tuesday, its outcome hinging on another hearing next week focused on thousands of disputed internal emails that once were declared missing and now are believed to exist.
“We are going to get to the bottom of this,” declared Superior Court Judge Ann Moorman after a second futile courtroom effort to unravel the email mystery in hopes that the contentious case can move ahead after months of delay.
Moorman is trying to make legal sense of conflicting accounts at the county level about how many thousands of internal emails might be relevant to the criminal case surrounding suspended Auditor-Controller/Treasurer-Tax Collector Chamise Cubbison and former county Payroll Manager Paula June Kennedy.
A long-awaited preliminary hearing for the two veteran county employees was scheduled to begin this week but after hearings last week and again on Tuesday, Moorman formally granted a defense motion to continue the preliminary hearing to an uncertain date.
“We are going to gather in person in court next week and figure out a solution. I am not going to let this case drift along,” Moorman admonished attorneys.
Public Defender Mary LeClair, representing Kennedy, urged Moorman to continue the preliminary hearing to a date uncertain until the email issue can be resolved. Also appearing in court was Deputy County Counsel Brina Blanton, who acknowledged that the situation is “confusing,” but said her office was prepared to help find resolution.
Special Prosecutor Traci Carillo, hired by Eyster to prosecute Cubbison and Kennedy after he stepped back from the case, appeared Tuesday remotely via video, as did Cubbison attorney Chris Andrian of Santa Rosa, County hired attorney Madeline Cline of San Francisco law firm Liebert-Cassidy-Whitmore, and Cubbison civil attorney Therese Cannata of San Francisco.
Initially it was Cannata’s quest in her civil litigation to retrieve emails surrounding Cubbison’s abrupt dismissal by the Board of Supervisors in October 2023 that triggered disclosure that thousands of internal county documents prior to 2022 were not available because an old archival system has been “corrupted.”
Then prosecutor Carillo unexpectedly learned that law enforcement investigators later gained access to thousands of the missing emails. Since then, County representatives and their attorneys contended that critical communications among the case principals were in fact “preserved” all along.
Nevertheless, in a July 15 letter to County hired legal advisers in San Francisco and provided to Judge Moorman, Carillo said the email snafu has led to “significant complications” clouding evidentiary issues.
Blanton, however, told Judge Moorman it might take an extraordinary effort to review emails for relevance and redact confidential information involving county personnel not linked to the criminal case.
“Well, you may have to do that,” said Moorman, citing laws that require defense attorneys to be presented with all material related to criminal defendants.
Of particular concern to defense attorneys, and now Prosecutor Carillo, are the existence of emails involving retired Auditor Lloyd Weer, who was still in office when the alleged criminal acts began to unfold in late 2019.
Weer has refused to respond publicly about his role in the high-profile case and reportedly has retained an attorney. He is suspected by defense attorneys of possibly having “third party culpability” in the case.
District Attorney Eyster in earlier court filings claimed the former Auditor told investigators he never talked to Cubbison or Kennedy about a special arrangement during the Covid pandemic that garnered Kennedy about $68,000 in extra pay over a three-year period.
As a result, Cubbison and Kennedy were accused by Eyster of a single felony charge of misappropriating government funds stemming from certain unauthorized compensatory time off payments allegedly paid between October 2019 and August 2022. Kennedy insists the extra pay was for time worked. There is no evidence Cubbison personally benefited from the pay.
In his initial court filings Eyster contended that Kennedy and Weer agreed in interviews with investigators that it was Cubbison who came up with a scheme to utilize an obscure pay code. Cubbison counters that Weer was still in charge of the office when the extra pay began, and that she believed he and Kennedy made the special arrangement, and she was aware of it but not a party to it.
The Cubbison/Kennedy case is laced with County politics.
Eyster publicly quarreled with Cubbison when she questioned his office spending, including annual dinners at a local steakhouse that he labeled staff “training sessions” although friends and spouses of DA employees were in attendance.
Eyster took the extraordinary step of blocking Cubbison’s interim appointment as Auditor when Weer stepped down early. Cubbison was later elected Auditor/Controller/Treasurer/Tax Collector by county voters after the County Board of Supervisors forced a consolidation of two offices led by independent elected officials.
During that tumultuous period, it was County administrators and some board members who upon learning about the unauthorized county payments to Kennedy took their suspicions about Cubbison to Eyster.
The Sheriff’s Office investigated, but it took Eyster a year to file the criminal case against Cubbison and Kennedy.
Cubbison refused an Eyster plea offer of a misdemeanor criminal charge in return for her resignation. After Eyster filed charges, the Board of Supervisors rushed to immediately suspend the Auditor without pay and benefits.
Special Prosecutor Carillo, a former Deputy DA and now defense attorney in Sonoma County, suggested Tuesday to Moorman that a way out for attorneys and the trial court is to reach an agreement to protect confidential county employee information while reviewing thousands of emails for relevance to the Cubbison/Kennedy case.
Defense attorneys Andrian and LeClair were hesitant.
In her motion for delay, LeClair argued to Moorman that the “failure of the county and/or law enforcement to ensure that Mr. Weer’s communications were preserved is an issue that now must be investigated.”
LeClair said that she does not believe the case should proceed “until I have received, or at the very least, have had my retained expert review all 174,000 emails recently found to exist.”
Andrian noted that his special IT investigator Chris Reynolds discovered that only a few hundred emails among Weer, Kennedy and Cubbison were accounted for in the first critical years of the extra pay, and then the number surges into the thousands after the fact.
“How can I possibly believe I have seen all the material that is relevant to my client?” asked Andrian.
This reminds me of Nixon’s 18 minutes of blank tape. LOL 174,000 emails!!!