Sonoma County prosecutors said in legal papers that neither they nor sheriff's investigators committed wrongdoing in recording a jailhouse visit between a Healdsburg murder suspect and his brother that also picked up an unrelated attorney-client conversation.
The court papers filed late Monday signed by Deputy District Attorney Scott Jamar are in opposition to a defense motion to dismiss the case of Jarrod Miller, 29, based on allegations of prosecutorial misconduct.
Jamar wrote that detectives "neither encouraged nor discouraged" the March 14 visit between the suspect and his brother Chad Miller, who the defense has claimed was acting as a "state agent."
Rather, Det. Brandon Cutting discovered by "sheer luck" that the brother was going to the jail so he placed a hidden recording device where it would pick up their talk, prosecutors said.
"This is perfectly legal for law enforcement to do as the conversation is not privileged," said Jamar, who is co-counsel on the case with District Attorney Jill Ravitch.
Jamar acknowledged that the device inadvertently recorded a conversation between defense attorney Joe Rogoway and defendant Samuel Luiz Lopez. But he said prosecutors are unaware of the contents of the recording and do not intend to use it.
He characterized that recording as "accidental," adding Miller has no standing to raise the issue in his case.
"There is no evidence that the recording was intentionally committed by the officials responsible for guarding against such abuses," Jamar wrote.
A hearing on the motion to dismiss is set for Aug. 11 before Judge Arthur Wick.
Jarrod Miller is charged with the March 8 shooting death of his sister's boyfriend, Timothy Neuer, 29. The slaying happened after an argument outside Neuer's Alexander Valley Road home.
Miller was arrested the same day. Officers said they found a gun they say he tossed out his car window.
Miller's lawyer, Joe Bisbiglia, has asked to have the case dismissed or have the District Attorney's Office removed from it, alleging detectives committed felonies in eavesdropping on Miller.
Bisbiglia said it doesn't matter if the recording of privileged information was an accident or unintentional. Under the law, the detective has criminal liability and could be exposed to state prison and fines.
However, the state Attorney General's Office in a recent opinion sided with Sonoma prosecutors, saying there was no misconduct and the district attorney should not be recused from the case.
If there had been a violation, the proper remedy would have been to suppress the recorded meeting between the Millers, the attorney general found.
Based on a partial transcript of that recording, little evidence was gleaned from the jailhouse visit. Jarrod Miller refused to discuss details of the case with his brother.
At one point, Jarrod Miller said, "I can't talk about anything and I can't tell you anything," according to court papers.
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