The Marin County District Attorney’s Office has dismissed criminal charges in at least 10 cases that would have relied on the testimony of two former San Rafael police officers who now stand accused of crimes themselves.
Other criminal defendants have been offered attractive plea deals for serious offenses because their cases involved the two ex-cops whose honesty is now in question.
And that’s just the tip of the iceberg. Plenty more cases will be impacted before this mess is over.
The saga began almost a year ago, when then-officers Daisy Mazariegos and Brandon Nail were accused of beating and severely injuring a local Latinx man during questioning about an open container of beer. Julio Jimenez Lopez, formerly referred to as “Mateo” by the media, suffered a broken nose, a torn labrum in his shoulder and a concussion, according to medical reports that I reviewed.
The apparent brutality was caught on police body-worn cameras, with the footage contradicting Mazariegos’ and Nail’s police reports.
In September, Jimenez Lopez’s attorney released the videos to the media, and the public demanded action be taken against Mazariegos and Nail.
The next day, the San Rafael Police Department placed the pair on paid administrative leave, setting up a quandary for Marin County District Attorney Lori Frugoli. Could she put Mazariegos and Nail on the witness stand to provide vital testimony against criminal defendants that she was prosecuting?
Marin County Public Defender David Sutton was also considering the same issue. His office promptly began reviewing all of its clients’ cases that involved Mazariegos and Nail.
“We saw the videos, as everyone else did,” Sutton said. “Their credibility is an issue. We are looking at every single case—first the active ones and then the historical cases.”
As part of the pre-trial process for current cases involving Mazariegos and Nail, the Public Defender’s Office has been filing Pitchess motions, which are used in California criminal cases to gain access to the officers’ confidential personnel files for evidence of misconduct, such as excessive use of force or falsifying police reports. A new Pitchess motion must be filed for each case.
Sutton is prohibited from telling me what he may have discovered from the Pitchess materials because they’re subject to a protective order.
However, a private defense attorney who was in court during a few of those Pitchess motions provided some insight. The judge left the courtroom to meet with a representative from the police department to review Nail’s or Mazariegos’ personnel file. Upon the judge’s return, it was reported that nothing in the file would have an effect on the defendant’s case, according to my source.
That fact may have changed recently. Mazariegos separated from the police department in May, after the completion of an independent investigation into the use of force incident. Nail left last month. There has been no word on whether they were fired or quit.
The City of San Rafael has refused to release the investigative report to the public, with city attorney Rob Epstein stating that the former officers have threatened to sue if the report is disclosed. Instead, Jimenez Lopez’s civil attorney, the Marin Independent Journal and a law student are suing San Rafael to obtain the report.
Regardless, any potential negative findings from the independent investigation will make their way into Mazariegos’ and Nail’s personnel files.
The situation has since heated up even more. Two weeks ago, Frugoli dropped the hammer on the ex-officers. After a 10-month investigation, she filed felony charges against Mazariegos and Nail for “assault under color of authority and making false statements in a crime report.”
Sure, the wheels of justice have moved slowly, and Mazariegos and Nail are presumed innocent of their criminal charges unless proven otherwise. But the ripple effects of last year’s use of force incident just keep getting bigger.
Hence, Sutton’s diligence. He says that his office will continue filing Pitchess motions, as well as investigating and developing a plan of attack on behalf of his clients.
Currently, the Public Defender’s Office is representing criminal defendants in 65 active cases involving Nail and Mazariegos.
There are also prior cases, those where people have already been prosecuted and convicted based on the testimony of the then-officers. Sutton says his office is compiling a list of historical cases, paying special attention to any allegations their clients made against Nail or Mazariegos and circumstances where the officers might have lied to justify their conduct.
“If there’s evidence of dishonesty which led to the conviction, then we would seek to recall those convictions,” Sutton said.
The potential ramifications are significant. It’s possible that convictions could be overturned, according to Sutton.
The Public Defender appears to be on firm ground with his position, especially when considering the statement DA Frugoli issued after she filed the felony charges against Nail and Mazariegos.
“…my office has concluded there is sufficient evidence to prove these charges beyond a reasonable doubt,” Frugoli said.
That’s a sticky wicket for Frugoli. It must be challenging for the DA to simultaneously prosecute the ex-cops and continue with the prosecution of other cases dependent upon their testimony.
So far, Frugoli hasn’t called on Nail or Mazariegos to provide witness testimony since the use of force incident came to light.
“Six of our clients are being offered very favorable plea agreements for serious charges as a result of these two officers’ involvement in their cases,” Sutton said. “They’re pleading to less serious offenses.”
It’s not just Sutton raising concerns and combing through active and historic files. Private defense attorneys also represent clients whose cases involve Nail and Mazariegos.
Although it’s not yet clear how cases may be affected, the total could easily reach triple digits. While Mazariegos was a new officer and had only been on solo patrol for about four months before being sent home, Nail had served as an officer since 2017, in both the Sausalito and San Rafael police departments.
The DA’s Office probably has the best estimate on the number of cases called into question; however, Frugoli did not respond to my request for an interview, nor did she answer any of the written questions that I sent her via email.
Defendants, some who may have committed crimes, have already waltzed out of the courtroom scot-free—without a jury ever hearing the cases and determining whether the accused were guilty or not.
In the end, Frugoli isn’t responsible for Mazariegos’ and Nail’s alleged crimes. That blame lies squarely on the institution of law enforcement, which has been moving slow as molasses to make meaningful reforms.
At least in this case, the wheels are in motion to hold Mazariegos and Nail accountable. Let’s hope that the entire process will be transparent, despite the best efforts of the former officers to keep their personnel records and investigative reports about their conduct cloaked in secrecy.