"That is absolutely incorrect," said Deborah Owen, the deputy district attorney who prosecuted the case.
Owen said the DA's Office could not have withheld evidence because employees did not know what was in the file. There may have been a report or accusation against the mother but there has never been a criminal case against her so the District Attorney's Office would not know what was in the file, Owen said.
MacCartee's lawsuit states the DA's Office subpoenaed Child Protective Services worker Cassandra Duran for the case. CPS cases are confidential and she could have been prosecuted for exposing the files to someone who is not entitled to see it, he stated in the lawsuit.
Rosales' attorney, Thomas W. Storey of Anderholt and Storey of El Centro, agreed with Owen.
"The DA does not have the authority to withhold or give the information in those files," Storey said.
He said Rosales told him there was something in the file.
"We filed a motion to get the information and Judge Roger T. Benitez reviewed the file," Storey said.
Owen said Duran was subpoenaed because she heard remarks made by the defendant.
District Attorney Gilbert Otero said his office wanted to question Duran about the defendant's demeanor.
"We wanted to know how was he acting. We weren't intending to question what was in the file. We wanted to know about his behavior," Otero said.
MacCartee is suing the county, District Attorney Gilbert Otero and former Assistant District Attorney Ralph Cordova Jr. for allegedly violating his civil rights and causing him to resign from his job with the county by their actions. Cordova is now the county counsel.
Documents in the lawsuit state MacCartee suffered from emotional distress that caused an early onset of Parkinson's disease. MacCartee alleges he became emotionally upset when he noticed one of his employees was working on criminal investigations but was billing his time to the Department of Social Services for welfare fraud investigations.
MacCartee alleges his supervisors at the time, Otero and Cordova, did nothing to stop the incorrect payroll billing. He also alleges Otero violated his First Amendment rights by instructing him not to discuss the billing with anyone. The lawsuit is scheduled for a settlement conference May 16.
Owen said she did not understand why MacCartee did not speak up about the content of the file since he knew what was in it.
MacCartee, contacted Monday, said he could not comment on the lawsuit.
Owen said the bottom line is the defendant got convicted because his story was not believable and he changed it during the trial.
>> Staff Writer Laura Mitchell can be reached at 337-3452 or email@example.com