Judge to review Nielsen case | TahoeDailyTribune.com

Judge to review Nielsen case

Greg Risling

Judge Allen Fields will review a request to dismiss the case against Mark Nielsen in private and may render a decision as early as Friday.

The Sacramento magistrate said Tuesday in El Dorado Superior Court he will need more time to examine the defense rationale on why the allegations made by the 1994-95 El Dorado grand jury against the District 3 supervisor should be thrown out.

“The indication I got from the judge is he is leaning to grant the defense’s objection,” said District Attorney Gary Lacy. “I wouldn’t want to say anything further until the judge gives us his written statement.”

Tuesday’s hearing lasted approximately 20 minutes and was cut short because the court room was needed for jury selection in an unrelated trial.

The Nielsen camp remained optimistic that all three accusations will be dropped.

“This case has gone on and on and Mr. Nielsen wants this thing behind him,” said Michael Sands, defense attorney. “He would like to concentrate on his job instead of bouncing back between board meetings and court hearings like he did today.”

Sands contends the case doesn’t have any legs to stand on and should be dismissed immediately. He added that he would rather attack the merits than try to win the case on a technicality.

In court papers filed by the Sacramento lawyer, Sands blasts gaping holes in the grand jury accusations, claiming the appointed board was prejudiced and politically motivated.

According to the past grand jury, Nielsen violated three sections of the government code. The allegations include failing to inform other supervisors about conversations he had with a former county employee who was suing the county. He also is charged with breaking the state’s open meeting law, the Brown Act, by trying to gain consensus from other supervisors on agenda items prior to a vote. If Nielsen is found guilty, he could be removed from office.

Sands argues that Nielsen didn’t commit “willful misconduct” when he discussed a pending lawsuit filed by former county counsel Bruce Kimsey. He claims the grand jury doesn’t cite a conflict-of-interest statue and that they made up a “common law” conflict. Since California law states there aren’t any common law crimes, the charge has no basis, according to the defense.

As to the violations of the Brown Act, Sands refutes accusations that Nielsen met privately with two or more supervisors to gain consensus on board items. The allegation, continues Sands, doesn’t specify whether Nielsen talked with the supervisors individually or two or more at a time. Calling the accusation vague and ambiguous, Sands used an example to clarify the point.

“If just two of the 120 members of the State Legislature met to discuss a piece of legislation, that meeting would violate the Brown Act if it was not conducted in public,” he wrote. “This is not only wrong, it’s ludicrous.”

Both Sands and Lacy haven’t received a copy of the grand jury accusation, which doesn’t meet a state-required 20-day deadline. The accusation was filed on July 10 but neither Lacy nor Sands had the transcript in the three weeks that followed. This alone, says Sands, is grounds for dismissal.

Fields told the lawyers the original transcript hasn’t been located in three sealed boxes delivered by the grand jury. If the case continues, Fields will let the lawyers sift through the stacks of stored paperwork.

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