Judge grants new hearing in drug case involving Santa Rosa officer with undisclosed conviction

A Sonoma County Superior Court judge Thursday ordered a new court hearing for a man accused of misdemeanor drug possession in 2017 because prosecutors failed to disclose the arresting Santa Rosa police officer's prior conviction of a crime involving dishonesty before he became a cop.

Judge Chris Chandler stopped short of dismissing the drug charge against Robert McGibben, 58.

Lawyers for McGibben had asked for the case to be thrown out earlier this year after learning the police officer who arrested him, Tim Gooler, had a prior conviction of impersonating an officer when he was 19, before he became a Santa Rosa cop in 2015.

Instead, the judge turned back the clock in the case, allowing the parties to redo court proceedings in order to give the defense the opportunity to test Gooler's credibility on the stand. In 2011, Gooler was charged with impersonating a CHP officer online by making a fake ID using the name and badge number of real officers. A year later, he pleaded no contest and served a year of probation.

Chandler said he found no evidence of prosecutorial misconduct on the part of the Sonoma County District Attorney's Office and found that the office acted 'quickly and in good faith' to alert McGibben's lawyer once prosecutors realized that Officer Gooler was the same person they prosecuted as a teen.

'The court orders a new hearing,' said Chandler, a visiting judge who retired from the bench in Sutter County.

McGibben's case was the first chance for defense attorneys to question county prosecutors about the District Attorney's standards for releasing information about officers and about how law enforcement agencies alert prosecutors about credibility matters involving their employees.

None of the people arrested by Gooler and brought to court in the first 3½ years of his policing career were told about his past until about nine months ago when prosecutors began sending letters to defense lawyers in nearly 800 cases where Gooler was listed as a potential prosecution witness, officials said.

Chief Deputy District Attorney Scott Jamar said dismissal would have been an extreme remedy for an honest mistake that was immediately remedied once a prosecutor realized in November 2018 while searching computer records and noticed two entries for Gooler. Jamar said he thinks the judge made the appropriate decision to give McGibben the chance to 'test the credibility of Mr. Gooler through rigorous cross-examination.'

'Isn't that what we all want? A fair trial or fair proceeding,' Jamar said.

Deputy Public Defender Scott Fishman said he will consider challenging the judge's decision.

'This goes to the heart of a just and fair criminal justice system,' Fishman said.

The allegations against McGibben involve less than 2 grams of methamphetamine, but the case has broader significance because it exposed a failure in the mechanisms in place designed to safeguard defendants' constitutional rights to challenge the credibility of any witness testifying against them, including the police officers who sent them to jail.

Tuesday, the California Supreme Court issued an opinion strengthening the duty of prosecutors and law enforcement agencies to seek out and disclose information that could help defendants question the credibility of officers testifying against them, such as prior convictions or misconduct.

The justices' decision reversed a lower court ruling in favor of a union representing Los Angeles sheriff's deputies that barred the Los Angeles County Sheriff's Department from sharing its list of officers with credibility problems.

That decision doesn't affect McGibben's case. Gooler's situation is unusual because his conduct occurred before he became a police officer and he successfully petitioned in 2014 to have his criminal record expunged. An expungement seals court records in a case but is not a legal pardon for committing a crime. The underlying facts of the case established in court don't change.

Jamar told the judge that Gooler's conduct should have been disclosed from the start of his career because it was a crime of 'moral turpitude,' a legal term referring to conduct that gravely violates accepted standards for behavior.

'There was a gap in the system that was not known. It was not willful. It was not purposeful,' Jamar said.

Over the course of three days this week, Jamar and Fishman questioned top prosecutors and recently retired Santa Rosa Police Chief Hank Schreeder.

From the stand Wednesday, Schreeder admitted he questioned his department's decision not to disclose the information about Gooler's dishonesty to prosecutors for years after he was hired.

In 2018, during a training held by the District Attorney's Office for law enforcement agencies on requirements for disclosing officer credibility information, such as dishonesty, convictions and other misconduct, Schreeder said he asked a chief deputy prosecutor a hypothetical question based on Gooler's situation.

Schreeder said the prosecutor's response didn't resolve his question about Gooler.

Attorneys on both sides pressed Schreeder on why, if he had concerns about whether his department should notify the District Attorney's Office about Gooler's expunged conviction, he didn't seek an immediate answer. Schreeder said he asked a lieutenant to follow up with more specific questions but didn't recall what came of that direction.

'Was the reason you didn't ask specific questions based on the facts of Officer Gooler's conviction that you didn't want to be embarrassed, question your hiring decisions and unravel cases in the criminal justice system?' Jamar said.

'Absolutely not,' Schreeder said.

Schreeder said he thought that he couldn't disclose the information because Gooler's criminal record had been expunged. The department has since changed its procedures and will disclose that type of information about its officers in the future, he said.

Courts don't ordinarily throw out cases altogether when Brady violations are uncovered — meaning the prosecution didn't turn over to the defense evidence that could help exonerate the defendant — and instead opt for other remedies because they must also consider the underlying question of whether the defendant committed a crime, said Laurie Levenson, a former federal prosecutor and now a law professor at Loyola Law School in Los Angeles.

'The remedy isn't necessarily to dismiss the case,' Levenson said. 'The remedy is usually to give the information to the defense and give them a new, fair hearing.'

You can reach Staff Writer Julie Johnson at 707-521-5220 or julie.johnson@pressdemocrat.com. On Twitter @jjpressdem.