Judge says he 'was misled' by DA in OPD perjury case
Attorneys for the case appeared in court Friday morning before Judge Scott Patton to discuss a search warrant related to Phong Tran's cellphone.
An Alameda County Superior Court judge raised serious questions Friday morning about a key warrant in the case against an OPD homicide detective charged with perjury and bribery.
Alameda County District Attorney Pamela Price charged Phong Tran in April with committing perjury twice in relation to a murder case from 2011.
Price also alleged that Tran bribed the key witness and tried to bribe another woman in his efforts to suborn perjury, according to court papers.
Tran's attorney, Andrew Ganz of Rains Lucia Stern St. Phalle & Silver, has said there is "no basis" for the charges and that Tran is "eagerly seeking to clear his name."
Attorneys for the case appeared in court Friday morning before Judge Scott Patton to discuss a search warrant related to Tran's cellphone.
But, before they could get into the substance of their arguments, Patton said there had been a "material misrepresentation" in an OPD statement the DA's office used to make its case.
"I was the magistrate that reviewed the first part of that search warrant," Patton said. "And I specifically was misled."
Prosecutor Zachary Linowitz repeatedly referenced a later warrant signed by a different judge and said he was not familiar with the warrant Patton signed.
"Does the court have the copy of that warrant?" Linowitz asked.
"I'm looking at your pleading," Patton told him, which referenced the warrant Patton signed.
"I don't know of any such warrant," Linowitz said.
"I remember signing this," Patton said. "I remember thinking about this case."
Patton told Linowitz he had believed Tran may have perjured himself because of a statement in a police affidavit, which appeared in quotation marks, regarding when Tran met a key witness in a murder case.
According to the affidavit, "Officer Tran claimed that 'the first time [he] had any contact with Ms. Weber [was] in September of 2013 . . . [w]hen she came down to [his] department.'"
The judge said the quoted statement had, in fact, been a question by a lawyer during trial, but that "anybody reading that" would believe it had been a direct quotation from Detective Phong Tran.
"He didn’t make that statement," Judge Patton told Linowitz. "Those are questions and answers, and it was an ambiguous question that could have been interpreted in one of two ways."
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The prosecution has argued that Tran lied about when he first met witness Aisha Weber, while the defense says Tran understood the question's focus to be when he first interacted with her about the murder case.
On the stand during trial in 2016, a defense attorney had asked Tran if his first contact with Weber had been in September 2013.
Tran asked, in response, "When she came down to my department?"
The defense attorney answered, "Yes," to which Tran replied, "Yes, sir."
Judge Patton said Tran sought clarification about the scope of the question, which he could have understood to be the homicide investigation.
Linowitz argued that Tran had affirmed "the substance of the question" he'd been asked regarding when he first met Weber.
"You are suggesting a very clear question and a very clear response," Patton said. "That's not what happened."
Linowitz said he saw the question as "pretty darn clear."
The judge said he wanted to hear legal arguments about whether the warrant would hold up should that part of it be deleted.
Phong Tran can now travel out of state
Before the hearing ended, defense attorney Ganz asked Patton to review an earlier judge's decision to prohibit Tran from out-of-state travel while the case is underway.
Linowitz said he had not been given any notice about the request to review the travel terms and did not have enough information to take a position on the matter.
He said Judge James Cramer had limited Tran's travel earlier this year because it was a "serious case."
Ganz said Cramer had made that ruling after reading a declaration alleging that Tran had threatened witnesses, "which of course he did not do," Ganz added.
"I have never heard of this before," he said, of the interstate travel ban.
Emilie Raguso
From the bench, Patton reviewed the earlier court decision and said he would remove the lines prohibiting interstate travel, calling it an "unusual restriction" on Tran.
The Oakland Police Department is currently examining Tran's phone but has been directed not to turn any material over to the DA's office until a judge rules on the cellphone matter.
That is set to happen in October.
Tran was held to answer in June on the criminal charges against him. The Alameda County DA's office said the veteran homicide detective could face a maximum of six years and eight months in prison if he is ultimately convicted.
