G&A Attorney Dan Thompson Wins Again!

“How do you feel it went?” That was the question attorney Dan Thompson was asked by his client, then former Correctional Sgt. Jeffery Harris, as they left a grueling and emotional 4 day hearing before the State Personnel Board (SPB) appealing Harris’ termination. Dan’s response, “I haven’t lost a termination appeal before the SPB yet, and I don’t plan to start with yours”.

True to his word, the State Personnel Board approved and adopted Administrative Law Judge Barbara Brecher’s award returning Harris to work with full seniority,back pay and benefits. Icing on the cake: no alternative discipline.

Harris, a long time and exemplary employee of CDCR, was terminated from his position as a Correctional Sergeant at California State Prison, Solano on January 15, 2009. The charges of misconduct included inexcusable neglect of duty, dishonesty, willful disobedience and insubordination, all of which can be fatal (if proven) to any career in law enforcement.

The Case

In January of 2008, Harris and his long-time friend, correctional officer Eric Moore, went to play tennis at a local athletic club and then stopped by Harris’ work place to retrieve a state vehicle for his use the next day. Harris drove the state vehicle to his home and his friend Moore drove his Chevy Tahoe. While en route to Harris’ residence, Moore was involved in a minor fender-bender with a Mr. Kellog. Since Moore didn’t have his identification on him at the time, he provided the contact information for Mr. Harris to Kellog and left the scene. Upon returning to Harris’ residence, Moore failed to mention the accident to him. The damage was minor and he was afraid at the time that Harris would be upset with him as it was a fairly new vehicle. Mr. Kellog contacted the police soon after the accident to file a report and Vacaville PD officer Lechuga responded to Kellog’s residence.

Upon retrieving Harris’ contact information from Kellog, Lechuga then arrived at Harris’ residence to question him. Harris was fully cooperative with the police and allowed them into his garage to inspect his vehicle unaware of the prior accident. Upon discovery of a small dent in the front corner of the bumper, Lechuga began to pressure Harris for answers. Not being aware of what had happened, Harris couldn’t provide any. Lechuga became more aggressive and began to pressure Harris to just say that he was the driver. He cajoled and baited Harris stating that it was only a “category 1 crash report” and he “just needed a name” to put down. At one point Harris, not really sure what to make of Lechuga’s behavior, agreed to have his name put on the report. However, Lechuga began to immediately press for more details and when Harris was unable to provide them, finally left to speak to Mr. Moore.

Lechuga was unable to contact Moore until the following evening, when he Moore invited him to his residence to speak to him. Moore immediately told the police that he was the driver, however Lechuga decided not to believe him. Instead he left and then returned to Moore’s residence wearing a wire and began to very aggressively pressure and threaten Moore. He told Moore he was a liar and was covering for Harris. He also suggested, rather pointedly, that Moore might lose his house and his entire life if he continued to cover for Harris. Broken down and frightened, Moore began to cry and reluctantly admitted Harris was the driver. As soon as Moore “confessed” Lechuga almost immediately left Moore’s residence having gotten what he wanted.

Lechuga then wrote up his final report and concluded Harris was the driver and that Harris had intimidated Moore into lying to the police to cover for Harris. When Harris discovered that Lechuga had determined he was the driver he was astonished. He immediately requested a meeting with Lechuga to inquire as to how Lechuga could have come to this conclusion. He met with Lechuga at the Vacaville Police Department in one of their interview rooms, and the entire exchange was recorded on video. Harris began to question Lechuga about how he determined he was the driver, and began to protest that Lechuga’s conclusion was incorrect. Almost without warning, Lechuga cut Harris off in the interview and informed him in no uncertain terms that if Harris continues to state that he was not the driver, that Lechuga would immediately issue him a criminal citation for providing false information to a police officer and would arrest him. Lechuga then launches into nothing short of a tirade to Harris about the reasons he felt he had for proving Harris was the driver. Harris again begins to protest and in response, Lechuga takes out his citation book and starts to write.

Utterly intimidated and surprised by Lechuga’s conduct, as well as being concerned about going to jail, for a moment Harris contemplated just admitting he was the driver. However, realizing the truth was more valuable than any criminal citation, he tells Lechuga that if the truth costs him a criminal citation to write it up. That night Harris left the station with a criminal citation in hand. Not surprisingly the DA later dismissed the charge after reviewing critical evidence Lechuga failed to properly consider.

After his “confession” to Lechuga, Eric Moore made repeated efforts to speak to Lechuga and his supervisors to take back what he had said. Lechuga’s only response to Moore was “don’t insult my intelligence”. Desperate, Moore went so far as to meet with the Chief of Police multiple times to do everything he could to right a wrong.

The CDCR later conducted an investigation of this matter, and they placed great weight on officer Lechuga’s conclusion that Harris was the Driver. As a result, when both Harris and Moore testified that Moore was the driver, both Harris and Moore were terminated from their employment with CDCR. Neither of them had any prior discipline with the department.

Both Harris and Moore timely filed appeals with the State Personnel Board. After reviewing the cases and recognizing their similarities, they were consolidated into a single hearing. Dan Thompson of Goyette & Associates and through the California Correctional Supervisors Organization, represented Sgt. Harris. Officer Moore was represented by his former labor representative, Dave Bustamonte.

Evidence at Hearing

In the course of the hearing it quickly became apparent that Officer Lechuga had utterly failed in his role as an investigating officer. Instead it became apparent he conducted a sloppy investigation, failed to thoroughly evaluate critical evidence and instead jumped to conclusions. Under cross examination to Mr. Thompson, he could not answer many of the questions posed to him or had to admit he had failed to consider evidence or ask clarifying questions.

One of the most critical pieces of evidence in this case was a surveillance video showing Mr. Harris and Mr. Moore leaving the athletic club (after playing tennis) just prior to the accident with Mr. Kellog. The video clearly depicted both the time of departure as well as their clothing. In spite of some contradictions in testimony, Mr. Kellog’s testimony regarding the clothing of the driver that struck him was consistent and clear in three separate interview statements. Not surprisingly, the clothing described so accurately by Mr. Kellog exactly matched that being worn by Mr. Moore in the video. Shockingly, while officer Lechuga admitted he had viewed the video, he had to confess that he had never inquired as to which person in the video was Mr. Harris and which Mr. Moore. Consequently, he did not have a positive ID that he could match to the description of the driver by Mr. Kellog but instead assumed it was Mr. Harris. Dan Thompson successfully admitted this video at the hearing and played it for Judge Brecher as well as the video footage of Lechuga threatening and berating Harris at the police station.

Sadly, CDCR’s internal investigation was just as poor. While they certainly spent a significant amount of money and resources to “investigate” they did little more than rubber stamp the findings of Lechuga.

For these, and several other glaring reasons, Judge Brecher properly ruled that the evidence overwhelmingly showed that Mr. Harris and Mr. Moore were not being dishonest. Any “confessions” by them to Lechuga were a direct result of Lechuga’s intimidation and abuse of his authority as an officer. Both men were reinstated to their former positions with no alternative discipline.

Why did we win?

The answer to this question is really quite simple: Dan invested the necessary time and effort to understand (and expose) the critical details of the case. In doing this, not only did it exonerate Sgt. Harris and Officer Moore but it severely damaged the credibility of the Department’s position. Judge Brecher’s decision refers to Lechuga’s conclusions as “a fundamental mistake which led to his incorrect conclusion that Harris, not Moore, was the driver.”

Dave Bustamonte, Officer Moore’s representative, had this to say about Dan’s performance at the hearing after Brecher’s decision was rendered:

  “Dan,

  I heard on Saturday because Eric [Moore] sent me a copy of the decision. You did a hell of a job and my heartfelt congratulations and from Eric as well, because without you they would still be terminated. If I was 20 or 30 years younger I’d look into law school. You were awesome to watch! If I ever need or have someone that needs an attorney, you’ll be the first and only name out of my mouth. Take care Dan and maybe I’ll see you around sometime.

Forever Grateful,

David B.”

When asked about the judge’s decision Dan had this to say, “I’m just happy another rightfully deserving client got his career back and some measure of justice was given. For me, that’s what we do and there’s no better reward than that”.

Here at Goyette & Associates we couldn’t agree more.