Misconduct by Merced County Sheriff’s Office in Ethan Morse case will cost taxpayers

Because of misconduct by the Merced County Sheriff’s Office, a federal judge ruled Tuesday that the lawyers who proved in a civil rights trial that Ethan Morse was falsely arrested in 2014 on a murder charge are entitled to attorney’s fees and court cost.

The key question is how much.

Morse’s legal team of Oakland attorneys J. Gary Gwilliam, Jayme Walker and Randall Strauss want Judge Dale Drozd to award them $1.76 million in attorney’s fees and $68,303 in court costs. Lawyers for Merced County and the sheriff employees who falsely arrested Morse are asking to pay much less.

Drozd declined to say how much he would award. Because the case involved complex legal issues, Drozd said it might take him months to reach a decision.

In making his ruling, Drozd said the Ninth Circuit federal appeals court has consistently held that lawyers who prevail in police misconduct cases are entitled to attorney’s fees and court costs because they benefit society as a whole and accomplish a public goal of warning law-enforcement officers not to violate a person’s constitutional rights.

A lawyer for Merced County, Dawn Flores-Oster, tried to downplay Morse’s trial as reaching a public goal, arguing that the case involved only Morse.

But Drozd said that after hearing the evidence in Morse’s trial, he would be deeply disappointed if the Merced sheriff’s office failed to change its policies or practices when it comes to getting a search warrant.

Drozd said Morse’s trial involved a rarely used civil rights complaint: judicial deception. Specifically, a jury in May found that Lt. Charles “Chuck” Hale and Detective Erick Macias had tricked a judge into signing a warrant to arrest Morse for a crime he didn’t commit.

After eight days of testimony, jurors awarded Morse $526,649 in damages.

Testimony revealed that Morse, the son of outgoing District Attorney Larry Morse II, spent nearly four months in jail before Merced County Superior Court Judge Ronald Hansen in November 2014 declared him factually innocent of the murder charge and freed him.

After being released, Morse sued Hale and Macias for violating his civil rights by maliciously or recklessly lying to a judge to get a warrant for his arrest. Morse also accused Detective Jose Sam Sanchez of inflicting emotional distress, but the jury rejected that claim, clearing Sanchez of any wrongdoing.

Lawyers for Hale, Sanchez and Macias have repeatedly insisted detectives had sufficient evidence and probable cause to arrest Morse.

Morse and his father, who lost his job in the June election, attended Tuesday’s hearing.

In court papers, Morse’s lawyers argued that they were entitled to $1.7 million in attorney’s fees because civil rights cases are difficult to try in front of a jury and costly, therefore no one locally would commit resources to do it.

In support of the attorney’s fees, Larry Morse submitted a declaration that said the case was “politically charged” so no one in Merced or in nearby cities would commit to the case.

Morse said his friends — San Francisco attorney Russell Giuntini, the former chief assistant district attorney for then-San Francisco DA Kamala Harris, and Walnut Creek attorney Michael Cardoza, who worked as a prosecutor in San Francisco, Los Angeles and Alameda counties — referred him to Gwilliam.

In his petition, Gwilliam listed his hourly rate as $1,000; Strauss at $800 an hour; and Walker at $600 an hour. To support the petition, they submitted a declaration from Fresno attorney Warren Paboojian, who said he frequently turns down civil rights cases because they are difficult to win and costly.

But Flores-Oster pointed out to Drozd that Paboojian’s declaration says he only charges $575 an hour.

To counter Paboojian, Merced County submitted a declaration from former Fresno federal judge Oliver W. Wanger, who is now an attorney. In his declaration, Wanger says there are capable lawyers in Fresno and in the Valley who can do civil rights cases, and the market rate for lawyers here is $325-$450 an hour. Wanger says he charges $495 an hour.

But Drozd pointed out that Merced County hired five lawyers from Southern California to defend Hale and Macia and the county.

Wanger’s declaration also says Morse’s lawyers did not achieve a public goal of reforming the Merced County Sheriff’s Office, noting that Morse’s lawyers had sought more than $10 million in damages, but jurors gave them much less. “There is no evidence that any Sheriff Department policy or practice were reformed or modified nor were any practices changed,” his declaration says.

Wanger’s declaration says Morse’s bill of $1.8 million for attorney’s fees and court costs “would be punitive in effect” to Merced County.