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Tuesday, May 21 2013 11:00 PM

ANOTHER VIEW: Judge Brehmer didn't deserve tarring over signing of search warrant

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    H.A. Sala

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By H.A. SALA

Although Lois Henry has penned remarkably insightful columns in the past, she missed the mark regarding her comments about Judge Charles Brehmer in her recent analysis of the David Sal Silva incident ("Impartial reviews should be standard procedure," May 15).

Henry denounced the actions by deputies in entering a residence and holding the occupants against their will. In the next sentence, she added, "the judge who signed that ridiculously overbroad warrant, more than eight hours after residents were besieged, needs to be held accountable as well ... come election time." Consequently, one could infer from her comments that the judge had some involvement in the inappropriate, if not unlawful, conduct of the deputies before the warrant was authorized. These comments about Brehmer are misinformed, reckless and not deserved.

I am a certified specialist in criminal law and have practiced in Kern County for almost 30 years. I have filed countless motions concerning the scope and legality of search warrants. When I read what Henry said about Brehmer, I felt compelled to inform our community of the law concerning search warrants and rectify the undeserved criticism of one of our most respected judges.

Search warrants may be issued only upon the submission by an officer of an affidavit, under oath, describing facts to support probable cause to believe a search will produce evidence of a criminal offense. The affidavit is carefully reviewed by a judge to ensure probable cause exists and to ensure it particularly describes the place to be searched and the persons or things to be seized. The judge is not involved in the investigation of the facts referenced in the affidavit. The judge's role is to review the legal sufficiency of the facts presented by the investigating officer. Also, judges are not involved in authorizing the detention of individuals or the securing of premises pending the issuance of a search warrant. There are very strict legal requirements before deputies can secure a residence or detain individuals without a warrant. If these requirements are not followed, the conduct of the deputies is unlawful. Therefore, to suggest that Brehmer had any involvement in the prolonged detention of the residents before he issued the warrant is misplaced and, frankly, irresponsible.

If Henry did not intend to suggest the judge's involvement in the conduct of the deputies, she could have clearly said so. She did not, which raises grave concerns about the propriety of urging the community, in effect, to vote against a Superior Court judge because he authorized a warrant based solely upon facts presented to him in an affidavit.

Henry does not mention whether she read the search warrant or the affidavit. I suspect she had not because, as of the date of her column, they were not public information. However, even if she had some information about the content of these documents, she is hardly qualified to proclaim that the warrant was "overbroad," which is a complex legal determination made by judges, appellate courts and, at times, the Supreme Court after extensive briefing and evidentiary hearings by lawyers involved in the particular case.

Perhaps what is most disturbing about Henry's column is the call to her readers to remember Brehmer "come election time." To incite the electorate based upon an unsubstantiated and undeserved accusation is appalling. I have appeared numerous times before Brehmer. While there have been occasions when he has made rulings adverse to my clients, he has always been impartial, honest and exceptionally ethical. Brehmer is extremely well-respected among our local bench and bar.

The main theme of Henry's column regarding the questionable behavior of the deputies and the urgent need for transparency in the investigation of Silva's tragic death is critically important to our community. Her suggestions for a multiagency task force and an outside hearing officer to conduct an evidentiary inquest are laudable and would certainly enhance public confidence. Unfortunately, the impact of her message was undermined by her inappropriate comments about one of our most respected judges. Henry would be wise to apologize publicly to Brehmer.

H.A. Sala is a Bakersfield criminal defense attorney with more than 30 years of experience practicing law. Another View presents a critical response to a previous editorial, column or news story.

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