State - INACTIVE

Merced DA: ‘No conflict of interest’ in drug case connected to family-owned apartment

Merced County District Attorney Larry D. Morse II says he was “walled off” and not involved in the evaluation of a case last year in which drugs and guns were found at apartment co-owned by his wife. Morse’s son, Ethan, also was questioned in connection with the case. Morse said it’s not a conflict of interest for his office to prosecute the case. Morse is pictured here May 10, 2017, a news conference in Atwater.
Merced County District Attorney Larry D. Morse II says he was “walled off” and not involved in the evaluation of a case last year in which drugs and guns were found at apartment co-owned by his wife. Morse’s son, Ethan, also was questioned in connection with the case. Morse said it’s not a conflict of interest for his office to prosecute the case. Morse is pictured here May 10, 2017, a news conference in Atwater. akuhn@mercedsun-star.com

A case involving drugs and guns found at a Merced apartment that Merced County District Attorney Larry Morse II lists as community property is raising new questions about conflicts of interest.

Morse is not implicated in the nearly year-old case. Neither is his son, Ethan Morse, who was questioned in connection with the case because investigators found his belongings during a search of the property.

Still, the California Attorney General’s Office asked Morse’s office to step aside in prosecuting the case, noting that it was aware Ethan Morse had been questioned. Harold Nutt, Morse’s chief deputy district attorney, declined, and one man has been charged in the case.

The developments in the minor criminal case follow high-profile discussions about conflicts of interest in two other cases involving the Morses:

▪ When Ethan Morse came forward in 2014 with information in a triple homicide investigation, the Merced District Attorney’s Office declared a conflict of interest.

▪ Morse’s office also declared a conflict of interest when veteran defense attorney Dominic Falasco was arrested on a misdemeanor drug charge in 2016. Morse said his office passed the case over to Mariposa because of the number of cases Falasco was defending in Merced County.

A professor at McGeorge School of Law in Sacramento who specializes in professional responsibility said the DA’s office should have stepped aside in the latest case, too. John Sims said not doing so “reeks of inside favoritism.”

Guns, drugs found in apartment

The case stems from a police search July 7, 2017, at 324 W. 20th St. in Merced. Three people were arrested, according to jail records and police reports obtained by the Sun-Star through a public records request. Police found 4.9 grams of suspected cocaine, 24.17 grams of marijuana, two .25-caliber handguns, a .22-caliber rifle, ammunition, $750 in cash, digital scales and packaging materials. The serial number on the rifle had been removed, according to the reports.

The four-unit apartment building is owned by Morse’s wife, Cindy. The building is listed as “community property” on Larry Morse’s Statement of Economic Interest filed with the county Feb. 28. Morse said a property management company oversees the apartment his wife co-owns.

Ethan Morse, the 21-year-old son of the district attorney, was not at the apartment when police searched it. He later was interviewed over the phone by a Merced Police Department investigator.

Ethan Morse told police he rented the apartment but moved out about two months earlier. He said he still visited there regularly to shower after exercising. Ethan Morse also said “he had some medicinal-marijuana plants that were in the closet of the bedroom,” according to the police reports.

“Ethan was adamant that he had no knowledge of any firearms or narcotics located in the apartment,” the report says.

Ethan Morse told detectives he’d been letting a friend stay at the residence. The friend, Isaiah Cardoza, was one of the people arrested following the search of the home, according to reports. Cardoza has not been charged in the case.

“Ethan stated that Isaiah was paying some type of rent to keep the apartment,” the reports say.

Larry Morse, in an interview with the Sun-Star, said his son had “sublet” the apartment to another man.

Two others, Ryan Attebery and Leon Attebery, were arrested at the apartment that day, according to Merced County booking records. Only Ryan Attebery has been charged in connection with the case.

Merced Police Capt. Bimley West said investigators described Ethan Morse as “not very cooperative.”

Morse said he understands why his son wouldn’t be eager to cooperate with law enforcement.

“Given Ethan’s experience with cooperating the last time, I’m not surprised he was a little hesitant,” Morse said, referring to his son’s arrest in 2014. In that case, Ethan Morse came forward with information in one of three slayings at an Atwater house party. Ethan Morse told investigators he had information that would clear one of the people arrested in that case.

Ethan Morse was charged in the case a few days later. He eventually was declared innocent by a Merced County judge. Earlier this month a federal jury determined that detectives in the case deceived a judge to get the warrant charging Morse. Detectives said they stood by their investigation, but the jury awarded Ethan Morse $526,549 in damages.

Morse’s office declared a conflict of interest after Ethan Morse came forward with information in 2014 before Ethan Morse was a suspect. Morse said there was a significant difference between the 2014 case and the raid at the apartment last year.

“My son was a percipient witness (in 2014) to a person who was charged with murder. He was an eyewitness,” Morse said. “He has no connection with this incident beyond subletting an apartment.”

Mistakes by police

West acknowledged “mistakes” were made in the apartment investigation. Specifically, West said, officers did not try to identify the owner of the apartment and acknowledged they didn’t know it was owned by Morse’s family until the question was raised by the Sun-Star.

West acknowledged, when drugs and guns are found in a home, officers routinely investigate whether that home is being maintained as a “drug house” as defined by Health and Safety Code 11366.

But that was not done in this case.

“That should have been done,” West said. “There’s no excuse for it not being done.”

West said he understands there will be critics, but said the decision to not thoroughly examine the apartment tenants and ownership was “a mistake.”

“It was not any form of favoritism. The officer didn’t know who owned the apartment at all,” West said. “They went there following up on a tip that people were selling drugs there and had guns and they found the drugs and they found the guns.”

West said the officers essentially closed the investigation after Ryan Attebery admitted responsibility for one of the guns and the cocaine.

West said he couldn’t immediately say whether city police would reopen the investigation, but said he “wouldn’t rule it out” as a possibility.

Attebery, a 27-year-old Merced man, has pleaded not guilty to drug and weapons charges, court records show. His attorney declined to comment on the case.

Charges against Attebery were filed by the Merced County District Attorney’s Office in February of this year, about seven months after the arrests.

DA’s office says apartment ownership ‘not relevant’

Nutt, Morse’s chief deputy district attorney, said he firmly believes there’s no conflict of interest for the DA’s office to handle the case.

He said Morse was “absolutely not involved in the filing decision.”

“He’s not necessarily involved in most filing decisions,” Nutt said. “I advised him that his son was mentioned in the case. He wasn’t involved in the evaluation of it at all. I did the evaluation.”

Morse also said he was not involved in the case evaluation. “I relinquished the case. I shouldn’t have been involved and I wasn’t,” Morse said. “I didn’t have anything to do with the case.”

Morse said he trusts Nutt to handle the case and said, if Nutt believed there was a conflict, he would’ve said so. Morse also said it’s common for prosecutors to be “walled-off” from involvement in some cases.

“We wall people off in any case in which they might have some passing interest,” Morse said.

State asks to intervene in case

In September 2017, about three months after the arrests, Michael Farrell, senior assistant attorney general in California, sent a letter to Nutt saying state prosecutors were aware that Morse’s son’s name had come up in a case involving possible illegal drugs and guns.

“To avoid any conflict of interest, we have determined that our office should review this matter and determine whether prosecution of any suspects is appropriate,” Farrell wrote.

Farrell requested “all materials received or generated” in connection with the case.

Nutt declined.

In a response dated Oct. 3, Nutt wrote, “At this point, I do not believe we have a conflict of interest.”

Nutt noted Merced police only had requested criminal charges against Ryan Attebery, Leon Attebery and Isaiah Cardoza. Nutt said police reports only listed Ethan Morse as “mentioned” and police did not request charges against his boss’ son.

“Since he is not a suspect, I do not see how his mention creates a conflict for our office,” Nutt wrote. “Needless to say, in smaller communities, we often deal with police reports where people known to members of the office are listed as victims, witnesses or mentioned.”

Ownership not disclosed to police, AG

Nowhere in his letter to the Attorney General’s Office did Nutt disclose the fact that Morse’s family owns the apartment where the drugs and guns were found.

Nutt said he couldn’t recall exactly when he became aware the apartment was owned by the Morse family.

When asked why he never disclosed that information to either the Merced Police Department or the Attorney General’s Office, Nutt said “it wouldn’t be my responsibility to disclose that to them.

“It didn’t seem particularly relevant,” he said.

In a letter to police investigators dated July 11, 2017, Nutt asked, in part, “Is there any way to establish whether Isaiah (Cardoza) was, in fact living there?”

Despite asking the question, Nutt did not ever disclose to police investigators that Morse’s family owned the apartment. Nutt said this month in an interview with the Sun-Star that police investigators “can figure out who the owner is on their own.

“I don’t have to draw a picture for them with crayons,” he said. “It’s public record.”

Nutt acknowledged that “on certain occasions, I might” share with investigators that kind of information.

“On this occasion, it didn’t seem particularly relevant,” Nutt said.

When asked why, if he asked that question of investigators, he didn’t just ask Morse or Morse’s wife directly, Nutt said: “Why would we do that?”

“As the district attorney’s office, we take what we’re given by the police department,” Nutt said. “The case sat around for a long time and that’s what we got from the police force.”

West, the senior Merced police captain, said it “would’ve been helpful” for Nutt to have disclosed that information, whenever he learned of it, especially since Nutt specifically asked police to look into the apartment’s tenant.

It’s unclear exactly what the California Attorney General’s Office knows about the case. The office declined to comment for this story.

Nutt said the Sept. 25 letter from the Attorney General’s Office and his Oct. 3 response were the only communications between the offices regarding this case. Nutt said since he never received a reply or other communications regarding the case, he presumes the Attorney General’s Office “is satisfied” that there’s no conflict of interest in the case.

The Sun-Star has filed multiple public records requests seeking communications about the case between the state and the Merced District Attorney’s Office. Justice Department officials have refused to release any documents, saying the records were part of “an investigative file” and exempt from public disclosure.

Nutt released his office’s correspondence with the Attorney General’s Office.

Also on Oct. 3, 2017, Nutt wrote another letter to the Merced Police Department, asking whether the other two firearms had been sent to the Justice Department for fingerprint analysis.

“Additionally, cell phones were taken from all three individuals,” Nutt wrote. “Has any effort been made to search them for evidence of sales?”

Nutt said he never got an answer to those questions.

Police said the remaining guns were not sent to the Justice Department because, due to a large backlog of requests, the state refuses to examine guns that aren’t already believed to be directly tied to a suspect in a violent felony case.

The phones were not examined. Police said examining cell phones is difficult. West pointed to the struggle the FBI encountered when federal investigators tried to force Apple to unlock phone encryption in connection with the 2015 terror-related mass shooting that killed 14 people in San Bernardino.

Nutt likened the drugs-and-guns case to someone loaning out their vehicle to a friend, saying if a friend takes your car and transports drugs in it, the owner only is legally responsible if the owner knows the friend plans to transport drugs.

“This is a run-of-the-mill drug case in which one of the parties admitted he possessed the drugs and guns,” Nutt said. “We charged those that we could prove a case on. We couldn’t charge the others because there wasn’t enough evidence to prove their involvement or their knowledge.”

Nutt said prosecutors would only declare a conflict if the DA’s son was named as a suspect in the case.

“There should be an actual conflict before we declare a conflict,” Nutt said.

Nutt also said there’s nothing preventing Merced police from reopening the investigation and asking the Attorney General’s Office to evaluate the evidence.

Is there a conflict of interest?

Sims, the McGeorge professor, said the district attorney should formally have recused himself from the case “at a minimum.”

“Certainly it would be preferable to have the Attorney General supervising,” Sims said.

He said the fact that the apartment owners and tenants weren’t fully accounted for during the investigation and weren’t part of the filing decision was more evidence that “some sort of external review” should’ve been sought.

“This type of favoritism calls the whole system into question,” Sims said. “It just looks like a situation of special treatment. It may not be, but how do we know?

But Morse said there is no conflict for his office because he wasn’t involved in any of the decisions regarding the case.

“We didn’t do anything improper in this,” Morse said. “He (Ethan Morse) is mentioned in the police report. We wouldn’t recuse ourselves when there’s no issue of evaluating a case for possible criminal charges.”

Sims said it would be possible, in theory, to set up a situation where the DA would be insulated from the decision making and the case could be handled by his office, but, he said, in his opinion, that’s unlikely.

“It’s really hard to imagine any subordinate being able to handle such a case,” Sims said. “I’d be very doubtful that could happen. Their fates are tied to his (DA) fate.”

Sims said authorities should consider “starting over” with a new investigation evaluated by an independent outside prosecutor, like the Attorney General’s Office.

“District attorneys are really powerful,” Sims said. “We need to have confidence in how things are being run.”

Nutt said the law professor was “entitled to his opinion.”

“It’s our office’s responsibility to determine whether a conflict exists,” he said.

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