Lewis keeps her focus on service to community

DA reveals new details on probe into jail recordings

Kimberly Helms Lewis became the first woman to serve as the Merced County District Attorney after a stunning, landslide victory over a three-term incumbent in the 2018 election.

It was a decisive win in her first-ever campaign for an elected position.

This year, Lewis is up for re-election in the June 7 primary.

A lot has happened since she took on the role as the region’s top prosecutor, including COVID-19. Despite unexpected challenges, the DA’s Office under Lewis has slightly increased felony filings — including in cases of domestic violence, prohibited firearms, vandalism, auto thefts, illegal possession with ammunition and assault with bodily injuries. Likewise, filings of felony DUI cases have also risen.

The amount of child sexual assault cases that have been brought to trial has gone up dramatically, as has the number of those that resulted in life sentences.

The district attorney has also led efforts to increase accountability in her department, bring helpful resources to all law enforcement agencies throughout the county, and promote cooperative projects at the local leadership level to improve the level of service her department provides to the community.

“When people reach out to us, we want to help in as many ways that we can,” Lewis told the Times in a sit-down interview. “That’s the goal.”

However, creating positive change during a pandemic and ongoing budget constraints is no easy task, the district attorney says.

Add to that a tough campaign that’s been heating up over the past few months.

The district attorney’s opponent in the race, Nicole Silveira, works under her in the same department, and Silveira’s campaign is strongly supported by Vern Warnke, the outspoken sheriff of Merced County.

The district attorney and the sheriff (who is also up for re-election though unopposed on the ballot) are two of the most powerful elected officials in the county. Lewis says a rift between the two unfortunately has developed and progressed over the past couple of years.

She said it’s been confusing for people, but also offered details of surrounding circumstances in order to add context to the situation.

“The role of a district attorney can be an isolating position,” she said with emotion.

Nevertheless, the district attorney said her integrity is intact as she continues with a campaign promise to be “tough, fair and honest.”


The Office

The DA’s Office employs about 90 staff members, including part-time help. The proposed budget for the coming year is around $16 million. Despite having one of the heaviest workloads for attorneys in the state, the department has endured budget cuts in recent years while staff has felt the pain of rising health care costs.

Lewis says these things — not to mention covid — have been challenging, and staff levels remain slim. During her first three years in office, approximately 40 to 41 permanent staff members have left. Her election opponent points to a “high turnover rate” at the department as a sign things are not going well. However, Lewis points out that half of those departures were retirements. They also include some who have left for career advancement, or better paying similar positions in other counties, along with some who decided to switch the way they worked during covid.

Lewis has been practicing law for 25 years — 15 years in criminal law and 10 years as a deputy county counsel at the Human Services Agency (HSA).

While she has taken nearly 40 cases to trial in her career — including tough domestic violence and child molestation cases, and one in which she became the first woman to prosecute a homicide case in Merced County — she says her time as county counsel provides her with some well-balanced experience for her role as a department head.

During her time with HSA, Lewis worked on formal discipline matters, legal agreements that needed a director’s signature, service agreements, rental agreements, MOUs between agencies, purchasing policies, and perhaps most importantly, she learned the county’s budgeting process.

Today, as the district attorney, Lewis says she is helping to incorporate good practices in the office workplace so that supervisors can meet with staff members to review training, goals and areas of concern.


Crime & Courts

Lewis wants people to know that the DA’s Office takes prosecution of child sexual abuse very seriously. There was an increase in these crimes during covid, and her staff interviewed about 100 children in the span of a year — most of them for sexual assault.

“We went from a single prosecutor handling them to having two prosecutors full time,” Lewis said.

Under her watch, 15 felony child molestation cases went to trial as compared to nine that went to trial during the last three years of the previous administration. She called the increase “quite an achievement” during all the covid restrictions and attorneys having limited access to the courts. Even more so, she is happy to report that nine of those cases that went to trial resulted in life sentences.

“We are much more aggressive in the way we are charging, handling and managing our child molestation cases than the previous DA was,” she said.

According to a recent report by the ACLU, during the first two years of the Lewis administration, the DA’s Office filed felonies in 25 percent of wobbler cases (when there was a choice between filling a misdemeanor and a felony) as compared to an average of 23.4 during the previous administration. Also during that time, Lewis outpaced her predecessor with 4,500 DUI filings, and a whopping 163 of them were felony filings.

Part of that ACLU report, however, was an allegation that the percentage of filings in the DA’s Office was not in line with the demographics of the community, and were disproportionately affecting people of color, particularly in cases where a misdemeanor could be replaced with a diversion program.

Lewis points out that the ACLU did not have access to all of her department’s data, and a broader view across multiple years shows that the office is filing charges in about 65 to 66 percent of the cases it receives, and it charges individuals of every race at about that same rate.

“What I need to remind people is that we are not the ‘point of contact’ with the community in terms of criminal cases,” Lewis explained. “The point of contact is the first responder, and the first responder in most cases, 99 percent of the time, is a law enforcement agency other than the DA’s Office. … The law enforcement agency develops a report of their investigation, and they make a determination themselves that is independent of the DA Office about whether or not there is sufficient evidence to support filing a criminal case.”

She said there are varying factors that can contribute to the number of criminal cases that are sent to the DA’s Office per ethnic group on any given year, and this includes surges in gang violence from Los Banos to Merced.


Cooperative Pacts

Part of the district attorney’s job is to appear before the Board of Supervisors to advocate for her department and also push forward initiatives that will improve service to the community.

One of the agreements, Lewis and her team pushed hard for was a court assistance dog program that provides a trained canine companion for a crime victim, particularly a child, who needs to be interviewed, or testify in court.

At first, the efforts received some funding pushbacks at the county administration level, but Lewis was able to boost her case with new directions and by taking it directly to the Board of Supervisors. They agreed. This June, one of her staff members will be matched with a dog, and they are hoping to start the program in court some time in the fall.

The district attorney has also been involved with this region’s Homeless Court Program from the start of her tenure. The court provides individuals experiencing homelessness access to justice, and addresses the legal barriers that prevent them from achieving self-sufficiency, while addressing the underlying causes of their homelessness. Minor infractions will be dismissed while these individuals are making good efforts to progress and become stable within the community. Lewis said she would also like to see a mental health diversion program for felony cases through a partnership with Behavioral Health and Recovery Services, the Probation Department and the Public Defender.

“One of the things I see as our role in the District Attorney’s Office is that we need to provide support to the local law enforcement agencies,” she said.

In 2021, the Merced Police Department were in need of a forensic tool to help with cellphone investigations, but they were challenged for funding. Lewis said her office was able to acquire the technology along with licenses that will provide the same assistance to all of the police departments in the county.

The district attorney also was able to hire two new positions with people who are qualified to serve as experts in gang violence cases to help support some of the smaller police departments in the county who otherwise would not be able to generate one for their jurisdiction.


The Sheriff

Early in her term, Lewis joined an effort to create an auto theft task force in the region. She said part of the reason was the high rate of stolen vehicle reports in the region and a void of such services in Merced County compared to Stanislaus and Fresno counties. In 2019, Merced County was ranked No. 8 in the nation for vehicle thefts. Modesto ranked No. 4.

The task force would have special authority to inspect places like recycling facilities and auto mechanic shops. It would also add expert surveillance support and additional resources such as more license plate readers to the area.

The funding plan was to raise standard vehicle registration fees at the DMV for Merced County residents by $1 dollar and commercial vehicle fees by $2. Residents are already paying the same amount of fees for a dedicated prosecutor at the DA’s Office. Lewis said the new fees would bring in $250,000 in seed money to develop the task force, but the return on investment would be much more than that.

The DA’s Office was able to secure agreements of support from every chief of police in the county, along with a commitment from the California Highway Patrol to dedicate three full-time officers and one part-time supervisor, and add-on services from the DMV and an insurance investigator. The only exceptions were the Sheriff’s Department and the Probation Department, both indicated they were not interested at the time, according to Lewis.

When the initiative came before the Merced County Board of Supervisors, Lewis said she was surprised by the pushback it received from the sheriff.

“He indicated to the board that he had never been invited to be a part of that process,” she said, “but I have an email saying he respectfully declined to be involved and didn’t want to be part of it.”

Sheriff Warnke went on to say he was “vehemently against” the plan in the local media, saying an “extra tax” was not needed and emphasizing his deputies were already making efforts to address auto theft and recovery in the region.

District Attorney Lewis said she realized at the meeting that the sheriff considered the auto theft task force as “competition to MAGNET” — the Merced Area Gang and Narcotics Team.

“MAGNET is having a hard time driving commitments from local police agencies, and it has suffered from withdraws of personnel and support,” Lewis said. “He didn’t see the auto task force as something beneficial for the community. My intention was not to draw down resources from within the county, but to draw on outside resources, including the CHP, that’s been handling a lot of auto theft cases. We had different perspectives.”

The board ended up tabling the issue, and later the CHP dropped out, citing a developing shortage in their own staffing levels.


Problem at the jail

The drive to create an auto theft task force is apparently not the only issue to raise tension between the DA’s Office and the Sheriff’s Office.

According to Lewis, in July of 2020, at the height of covid, the DA’s Office discovered the Sheriff’s Department’s was recording inmate phone calls with their attorneys and those confidential recordings were accessible to other law enforcement agencies — an act that is prohibited and punishable by law if there is intent or criminal negligence. This can also compromise active cases in the court system, as well as create the potential of relitigation for ones that have already been adjudicated.

The Sheriff’s Department has had a contract with a service provider known as “GTL” that provided telephone services for incarcerated individuals at the Merced County Jail since 2012, Lewis said. Phone calls between inmates and friends and family members, for example, are monitored mostly for security purposes, but those conversations also can be used as evidence within the boundaries of the law. Since it’s time consuming to have other law enforcement agencies request those recordings and have them downloaded and sent over, according to Lewis, the Sheriff’s department gave out user IDs and access to the system to all law enforcement agencies in the county, including the DA’s Office.

In July of 2020, Lewis said, one of her chief deputies was going through jail calls related to one of his cases, and all of a sudden he is hearing a public defender speaking in the call.

“He immediately shuts down the call, and calls GTL, and asks why is there an attorney phone call that has been recorded,” Lewis said. “And they don’t have an answer. He goes to me, and says, ‘I just listened to a recorded phone call from an attorney.’ … and I’m like, ‘OK, that’s not good.”

Lewis said she was required to start an investigation to figure out why it was that her office was able to access an attorney phone call. Still having access to the GTL system, DA investigators pulled up the public defender’s phone number and found “a big ol’ list” of recorded phone calls that had been placed to the public defender’s number.

After an inquiry, Lewis said her office discovered that during covid, the public defender could no longer enter the jail to have regular meetings with clients. So the jail was asked to make sure any telephone calls would not be recorded. According to Lewis, the jail agreed. She said the public defender inquired a second time to make sure they had taken steps to make sure the recordings would stop during those confidential calls.

Instead, the district attorney says, hundreds and hundreds of calls were recorded.

Recording of inmate phone calls has caused problems in other areas of the nation, including a similar case in Orange County. Lewis said in that case the DA’s Office didn’t say anything about it in a timely fashion, and so the office got looped into the investigation. In other words, Lewis had to act on the discovery.

She notified the Sheriff’s Office that an investigation had started, and she had to notify the public defender and the conflict public defender about the number of calls that were recorded, and a smaller number of calls that were actually listened to by a third party.

During the investigation, the DA’s Office learned that these calls had been recorded since 2012. “At the moment, we have identified 16,343 recorded attorney numbers from the jail between 2012 and 2020,” Lewis said.

The probe has also identified 170 that were actually listened to by a third party.

“We have been in the midst of this investigation, and this week we have forwarded our report to the state’s Attorney General’s office,” Lewis told the Times during the interview on May 12. She said there is the possibility of criminal negligence in the case.

So far, Lewis said, the public defender has filed motions to dismiss in three cases, but the DA’s Office were still able to litigate those cases and win. However, she said, the public defender subpoenaed staff from the Sheriff’s Department to appear at hearings, and at one of those hearings, the district attorney was present. When it was time for one of the staff members to testify, Lewis said she was compelled to stand up and say:

“Your honor, I have the duty to tell you that I have an active investigation, and the individual who has been called as a witness is a potential suspect in the investigation, and I believe that they need to be advised of their 5th Amendment right.”

Said Lewis to the Times: “And so I had to go in and say — to friends of mine who I have worked with for 20 years — ‘Even though you are a friend of mine, and even though we have worked cases together, you’re a suspect in an investigation that I am conducting, and I need the court to advise you of your 5th Amendment rights.’ … And it still makes me sick to my stomach to know that I did that. But I had to do it, because it was what was required.”

She added, “The sheriff understandably was upset.”


Jail break

Lewis says there’s something else that caused friction between her and the sheriff.

Six inmates escaped from the Merced County Jail in January of 2021.

Nearly six months later, in June, the sheriff held a news conference to reveal that his jail staff members made mistakes that led to the escape.

Says Lewis: “The reason he had that press conference is because the DA had made a request to receive a copy of the DOJ report into the Sheriff’s Office staff that were on duty the night of that escape and prior. There were problems going on, and if we were prosecuting those escape charges, I needed to know if any of our witnesses were going to have any problems relating to Brady (Supreme Court ruling) — meaning: ‘Were my Sheriff’s Office witnesses going to have problems with truthfulness that I had to disclose to the defense?’ … and so I needed the DOJ report.”

Lewis believes the Sheriff’s Department was worried that the DA’s Office would release details of the report.

The district attorney and incumbent candidate concludes: “This is why he is unhappy with me. There are poor practices that have been going on, and he’s worried I will talk about it.”

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