A Stanislaus County Superior Court judge on Thursday decided not to take any action on what she called untrue allegations that the district attorney's office has wiretapped a defense attorney's phone.
Judge Marie Silveira made her announcement in court during a pretrial hearing in the case of Lee Freddie Gaines, 27, a former Modesto police officer accused of sexually assaulting a woman in a motel room.
Mary Lynn Belsher, Gaines' defense attorney, has claimed her phone conversations have been overheard by investigators working on behalf of the district attorney's office, infringing on her client's right to confidential discussions with his attorney.
Belsher wanted to see the district attorney's wiretap records and was asking the court to help her do that. On Tuesday, Belsher submitted to the court a sealed envelope with documents she said supported her claim.
Chief Deputy District Attorney Dave Harris has said authorities are required by law to notify anyone who has been overheard in a wiretapped phone call but is not involved in that investigation. He said in court Thursday that the allegation that investigators wiretapped Belsher's phone is not true.
After reviewing a filed response from prosecutors and the sealed documents from the defense attorney, and consulting with the supervising criminal court judge, Silveira decided she wouldn't make a ruling on the issue.
"I'm not going to take any action on that, because I don't think (the issue) was properly raised," she said to the attorneys. "There is a way to handle that, and that's not this way."
Belsher argued that the judge's decision meant "there's a wiretap on my phone and no attempt to resolve it."
The judge stopped Belsher from continuing her argument. "That would appear to be untrue," Silveira said to her. "It doesn't have anything to do with Mr. Gaines' case."
The judge said she will keep the submitted documents from both sides for a complete record of the criminal case, but she was not going to continue to discuss the matter in court. She said she would prefer to proceed with the case and schedule a trial date. "I don't want to have any more distractions."
The judge scheduled Gaines to return to court Sept. 20 to schedule a trial date.
Slightly more than a year ago, a criminal grand jury indicted Gaines on charges of oral copulation by force, being armed with a firearm while committing a sexual offense, sexual battery and assault under color of authority. The indictment means the criminal case skips the preliminary hearing phase and moves to trial.
The woman who says she's the victim testified to the criminal grand jury that she was working as a prostitute at a motel where the sexual assault occurred.
She has told The Bee she got a call for service, and the officer came to her motel room. She said the officer handcuffed her and demanded oral sex.
An internal investigation by the department into the claim of sexual assault began Jan. 8; Gaines resigned Feb. 10.
Bee staff writer Rosalio Ahumada can be reached at rahumada@modbee.com or (209) 578-2394.
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