Suit details prosecutor's claim

By JOHN F. BERRY
The Press-Enterprise

A legal battle that eventually cost San Bernardino County almost a half-million dollars began with the suspicion that a top prosecutor would challenge the district attorney in the 2006 election, court documents say.

Grover Merritt, who in December won reinstatement to his old job and a nearly $300,000 settlement, said he was set up to be fired so he would not challenge San Bernardino County District Attorney Michael Ramos, the newly released documents say.

Merritt accused Assistant District Attorney Michael Risley of leaking secret documents to the press, with Ramos' approval, so that Merritt could be accused of the leak.

"My reputation is in tatters," Merritt said in a Sept. 13 deposition. "I've been publicly branded as a leaker."

Merritt was named Prosecutor of the Year for 2002, the same year he successfully argued California's "three strikes" law before the U.S. Supreme Court.

But Ramos and Risley say in the same court records that they never considered Merritt a viable candidate for district attorney.

"He would not have been considered a serious threat," Risley wrote. "He had limited political experience, no financial support, no endorsements and limited people skills."

Ramos, re-elected without opposition in 2006, limited his comments to an e-mailed statement when he was asked about the accusation.

"This matter was litigated and resolved last year," Ramos wrote. "We have put it behind us and are moving forward with the important work of the district attorney's office."

Risley, also named in the lawsuit, and Assistant District Attorney James Hackleman, who led the leak investigation, both declined to comment.

Records Uncovered

Merritt's accusations are contained in almost 400 pages of exhibits in a U.S. District Court file in Riverside. The records came into public view sometime after settlement talks began last year, revealing Merritt's contention that he was set up to be fired for political reasons.

Previously, federal and Superior Court judges, as well as county officials, had blocked the public from most court proceedings and records, citing the sensitive nature of the leaked information and rights to privacy.

The Merritt-Ramos court fight cost San Bernardino County taxpayers at least $444,303, including $297,500 for Merritt's Dec. 21 settlement of his wrongful-termination suit.

The agreement, which also restored Merritt to his previous job as Appellate Services Unit chief, said that neither side admitted fault.

San Bernardino County also paid Redlands lawyer Geoffrey Hopper $146,803 to fight the case for it, county spokesman David Wert said.

Anonymous Leaks

In April and May 2004, Valleywide Newspapers, a chain of eight weeklies based in the High Desert, ran stories based on two separate sets of documents. The stories do not say who provided the information.

The first was a death-penalty memorandum about two defendants, Jimmy Dale Kelley and Kimberly Wynn Michaud, charged in a January 2004 triple slaying in Yucca Valley. They are awaiting trial.

District attorney's office officials, including Merritt, said in the court records that the leaked documents were closely held secrets.

"If someone leaked a death penalty memo, if I were king for a day, I would have fired him," Merritt said. "You can't get, I don't think, a more precious document in a local district attorney's office."

The second set of documents included statute-of-limitations research involving former San Bernardino County Sheriff Floyd Tidwell, accused of taking at least 523 guns from property lockers during his years as sheriff. He served from 1983 to 1991.

Tidwell pleaded guilty in May 2004 as part of a plea bargain pledging cooperation. His four felony charges of gun possession were reduced to misdemeanors seven months later.

Publication of the documents violated district attorney's office policies and professional ethics, negatively affected the district attorney's relationship with the Sheriff's Department and could affect possible trials, the court records say.

Investigation

Hackleman took charge of the leak investigation in May 2004 and, in the court records, writes that Merritt soon became the prime suspect.

"To this day I still believe Merritt is the most likely leak for the information," Hackleman states. "My decision and recommendations regarding dismissal were based entirely upon my good-faith investigation."

The evidence included the reporter, Mark Gutglueck, being in possession of double-sided documents, a practice that Merritt, as head of the appellate unit, instructed his staff to follow to reduce office copying costs.

The articles used quotes with Merritt's speech patterns, Hackleman said, and Merritt had worked with Gutglueck on previous stories.

The investigation focused on Merritt's office phone records, which included a call to Gutglueck at 12:10 p.m. March 29, 2004. The call, which lasted 4 minutes and 55 seconds, was made the day the reporter faced a deadline for one of his stories.

Merritt was "vague and evasive" about the conversation when questioned, Hackleman wrote.

"(Merritt) could not explain what the purpose of the call was or what was discussed," Hackleman wrote. "(His) inability to explain ...was another factor in concluding (Merritt) was the source of the information."

Merritt, citing his settlement, declined to answer questions specifically addressing his court case, but he characterized the call as "no big deal.

"I didn't remember it at the time," Merritt said.

On Aug. 13, 2004, Merritt was served with a "notice of proposed dismissal," which cited him for the leaks as well as disrespectful behavior toward court officials. Records of Merritt's annual job evaluations, included in federal court records, show Merritt received several below-average grades for his inability to work well with office staff and court officials.

Merritt was escorted out of the office.

"1:34 p.m.," Merritt said in a recent interview. "I won't forget that one anytime soon."

The following month, Merritt's attorney provided a sworn statement from Gutglueck saying Merritt was not the source of the anonymous documents, court records say.

Gutglueck declined to comment.

Firing Back

Merritt appealed his termination on Oct. 7, 2004, the day after he was officially fired.

Nine days of hearings before the San Bernardino County Civil Service Commission began the following April. In July 2005, hearing officer Doug Hart ruled that the district attorney's office failed to substantiate the firing.

Hart ordered that Merritt receive his old job and 10 months of back pay.

The ruling said there was no direct evidence proving Merritt was the leak source. The ruling did not say if anyone else in the district attorney's office was the source.

"Evidence also showed many people in the district attorney's office talked to or called phone numbers associated with Gutglueck, including Assistant District Attorney Risley," Hart wrote in his ruling.

Hart noted that Risley had a "long-standing personal relationship" with the publisher of Valleywide Newspapers, Ray Pryke, which included helping Risley win a seat on the Town Council of Apple Valley.

Pryke said recently that he and Risley were close friends, but they have not really talked since 2004 because they were both witnesses in the Merritt lawsuit.

"Risley is a very good prosecutor," Pryke said. "He has good moral values."

He declined to discuss how his newspaper chain obtained the confidential information.

Back to Work

Merritt returned to work in the district attorney's office in August 2005, but as a courtroom prosecutor, not as Appellate Services Unit chief, his previous position.

He viewed his new position as a demotion and a "sham." District attorney's office officials said his previous position was eliminated in an office reorganization.

On Oct. 11, 2005, Merritt filed a federal lawsuit against Ramos, Risley and San Bernardino County on nine grounds, including violating his civil rights, wrongful termination and inflicting emotional distress.

In his lawsuit, Merritt focused on a July 2004 conversation with Ramos at a California District Attorneys Association conference in Napa. The lawsuit states that Ramos boasted about his contacts with Gov. Schwarzenegger and dangled a judgeship in front of Merritt as a "thinly veiled" offer to dissuade him from running in 2006.

Merritt said he found the timing of the conversation odd considering he was already the target of a leak investigation.

Ramos said in the federal court records that he initiated the topic during polite conversation but didn't promise a judgeship.

Merritt said recently that he was only considering running for district attorney and never made a final decision in 2004 to challenge Ramos. He said he does not have a passion for running for office, but he declined to dismiss the possibility outright.

In November, Merritt was elected president of the San Bernardino County Public Attorneys Association, the union that represents nearly 400 prosecutors and public defenders. His duties dealing with the district attorney's office on union issues.

Reach John F. Berry at 909-806-3058 or jberry@PE.com

dispute

The conflict between San Bernardino County District Attorney Michael Ramos and Deputy District Attorney Grover Merritt lasted more than two years:

2002: Merritt is named Prosecutor of the Year and successfully argues California's "three strikes" law before the U.S. Supreme Court.

Late 2003-early 2004: Rumors and e-mails circulate suggesting that Merritt is considering running for San Bernardino County district attorney in 2006.

May 2004: A top official in the district attorney's office heads an investigation of leaks to the press and identifies Merritt as the likely source.

Early July 2004: Ramos offers to support Merritt in an application for a judgeship.

Aug. 13, 2004: Merritt is escorted out of the district attorney's office and fired two months later.

July 7, 2005: After nine days of hearings, a civil service examiner rules that the district attorney failed to justify Merritt's firing and that Merritt is owed back pay and his old job.

Aug. 1, 2005: Merritt resumes work, but as a courtroom prosecutor rather than Appellate Services Unit chief, his previous position. .

Oct. 11, 2005: Merritt files a federal wrongful-termination lawsuit.

Dec. 21, 2006: Merritt wins nearly $300,000 in a settlement.

Jan. 8: Merritt returns to his old job as the lead deputy district attorney for the Appellate Services Unit.

SOURCE: U.S. District and Superior Court records; San Bernardino County