The Zahau Family's Fight Against the Sheriff's Department Continues
Updated: Dec 2, 2021
By Caitlin Rother
(Updated 12/2/21 with new information about Kelly Martinez's involvement in this case. Scroll down to NEW INFO HERE.)
Rebecca Zahau’s family filed a lawsuit against the San Diego County Sheriff’s Department (SDSD) in July 2020, but I’ve waited until now to write about it because I wanted to see where it would go and what would come out in court.
Called a petition for a writ of mandate, it’s essentially a public records lawsuit. It involves some pretty complicated legalese and inside-baseball, but it has some potentially far-reaching ramifications. I believe it raises some important questions not just about the Zahau case, but about the state law that regulates what investigative records are available to, and withheld from, the public, and whether the outcome of this case will prompt any change in that law.
After talking about the lawsuit on KOGO radio this morning, I decided it was time. So I asked retired sheriff’s commander Dave Myers for his thoughts, and he gave me some good insights. For the record, I put in a request for comment to Undersheriff Kelly Martinez, who is running for sheriff against Myers on the Democratic side, but she declined through her campaign manager to speak to me. Keith Greer, the Zahaus’ attorney, didn’t respond to my request by text. The San Diego County Counsel's Office has a policy not to comment on pending litigation.
Myers made a good showing against Sheriff Gore in the 2018 election after announcing on Twitter that, if elected, he would re-open the criminal case into Zahau’s death. Myers lost to the incumbent, which is pretty typical, but he is running again in the 2022 election, and he has repeated that campaign promise.
After three terms in office, Gore, who has been embattled on many levels in recent years—including for his position that Rebecca Zahau’s death was a suicide—announced his retirement in late July 2021. I will get to the politics behind this case, and why that’s important, in a minute.
First, let me say that I’m a little biased, because I’m hoping that the judge, Timothy Taylor, who was appointed by then-Gov. Arnold Schwarzenegger in 2005, will order the SDSD to release all the records the Zahau family is requesting.
The public has questions about this controversial case, and we want them answered, because the investigation left us unsatisfied. That’s why I didn’t take a position in my book, DEATH ON OCEAN BOULEVARD: Inside The Coronado Mansion Case, in the ongoing suicide vs. murder debate.
The public relies on investigative journalists, whether they are working media or authors like me, to expose the truth. But we can’t do that if government and law enforcement agencies don’t act with transparency and release records to prove that they are doing right by the taxpayers who pay their salaries and the citizens who fulfill their jury service obligations and vote sheriffs into office.
Confirmation bias is a real thing, and that’s what the Zahau family believes was in play during this investigation—that the SDSD clamped down on any evidence or theory that didn’t support the department’s ultimate finding that Rebecca Zahau hung herself naked and gagged, with her ankles bound and her hands tied behind her back, from an exterior balcony at the Spreckels Mansion in Coronado, California. That they released the “entire investigative file” to the Zahaus, but held back anything that didn’t back that premise.
Since (and even before) my book was released, I can’t even count the number of people who have told me that they believe Rebecca Zahau was murdered—and that the SDSD really screwed up this case—because they can’t see how anyone could say this was a suicide. That view is by far the majority opinion I’ve heard.
Even Taylor’s colleague, Judge Katherine Bacal, has criticized the sheriff’s investigation. After presiding over the civil trial in 2018, when a jury found Adam Shacknai liable for Rebecca’s death, she said the SDSD’s investigation raised as many questions as it answered, and it’s reasonable to ask, “who killed Rebecca Zahau?”
I have the sheriff’s investigative file in this case, so I know first-hand that it doesn’t contain the documents the Zahaus have requested, such as interdepartmental emails or texts (say, between detectives, or between detectives and crime techs, or even between Gore and his attorneys); notes, workbooks or binders created by detectives. Anything, basically, that might show there was dissent between investigators.
Myers, who acknowledged to me today that he believes Rebecca Zahau did not die at her own hand, has previously said that the homicide unit was not unified in its belief that Zahau’s death was a suicide.
When I asked him about that today, he clarified that he talked with friends in that unit at the time (while he was a captain, in charge of the sheriff’s station in Imperial Beach), and they told him that they didn’t support that belief. However, because they weren’t assigned to the case, they didn’t register those opinions in any official way because they weren’t asked to.
I asked Myers if he had any direct knowledge of the existence of documents expressing dissent and he said no. “I have not seen any even when I was there,” he said. “I did not look at the actual case files, electronic or otherwise.”
That said, he was once a homicide detective for the SDSD, and he knows how such investigations are conducted, so he believes the Zahau family’s lawsuit will be fruitful. However, he noted that it will also depend on the due diligence of attorney Keith Greer, whom he called a “friend,” and Greer’s success in deposing individual detectives—asking them if they took personal notes during roundtable discussions, for example.
Myers said he’s seen “pages torn out of deputies’ notebooks that are shoved into casebooks,” but with the advent of electronic technology, the modern-day version of that is most likely text messages or emails, which they might have sent to themselves or others during the investigation.
Even if such correspondence has since been deleted, he noted, it could still exist on the provider’s server. When I pointed out that that providers usually delete that type of information within seven years, he replied that detectives commonly download their texts or emails, or write notes to themselves about things to follow up on, for later reference.
Some even keep a second notebook that they purposely don’t title as an investigation notebook, he said, calling it “a daily reminder book” instead. That’s because their official notes would be “discoverable,” i.e., become part of the sharing and transfer of documents requested during discovery in a lawsuit or trial. Similarly, I’ve had FBI agents tell me that they keep it all in their head for the same reason. If you write it down, it can become discoverable.
The Zahaus have also requested any written correspondence that would show why investigators obtained cell phone records for Zahau, and Jonah and Dina Shacknai, but not for Jonah’s brother, Adam. Adam Shacknai was the only other known person on the property the night she died, and he called 911 the next morning to report that Rebecca had hung herself. Just hours after the jury found Adam Shacknai responsible for Rebecca’s death, Gore and the SDSD issued a statement saying they were sticking to their suicide finding.
It was Myers’ tweet, saying he’d re-open the criminal investigation, that prompted Gore to form an “independent” panel of detectives to conduct a “review” of the investigation by reading over transcripts of the civil trial and the evidence and arguments presented. In their recently amended lawsuit, the Zahaus are also asking for the release of Gore’s instructions to the panel.
The Zahaus claim that those instructions were so limited that the panel was prevented from doing much of anything, while Gore led the public to believe that the SDSD was doing a more substantive examination. The SDSD claims those instructions “are exempt from disclosure” under state law; the Zahaus claim that they aren’t because they don’t “reflect the analysis or conclusions of the investigating officer.”
My question is, why not release them in the spirit of transparency? Isn’t it better to try to alleviate the public’s mistrust of the SDSD—and also address the Zahaus’ accusations of corruption—that continue to plague the department because of this case?
NEW INFO HERE: When the Times of San Diego reprinted this blog post last night (12/1/21), Myers commented on Twitter that Martinez, then the assistant sheriff, was in charge of both the initial Zahau death investigation as well as the subsequent review in 2018. I messaged him about it today to follow up. Here's what he said:
"She oversaw homicide and direction from Gore on how in-depth of a review and what type of review both times would have flowed directly through her," he wrote.
"How involved would the assistant sheriff be in crafting the 'instructions' to the review panel?" I asked.
"VERY involved since the decision to review was very political. I would almost guarantee she would have emails, text messages either directly from her or attributed to her with directions on the nature/manner of the reviews," Myers replied.
Judge Taylor has asked attorneys from both sides to respond to two pages of questions within briefs on the merits of the lawsuit before a hearing now scheduled for January 28. In the meantime, Greer said he would depose experts to define and characterize the typical contents of an investigative file, and how they are handled.
One of the judge’s questions is whether Gore’s instructions to the panel were in written or verbal form. Theoretically, if they were written down, a piece of paper could prove whether Gore told them not to look too hard, because he was running for re-election and they shouldn’t embarrass him or the department. But honestly, do we really think he would give such an instruction, let alone in writing? And do we really think that investigators would write up reports with dissenting views that Rebecca Zahau was murdered if the department was moving toward a suicide finding?
In my experience, I’d say no, not if they wanted to keep their jobs. If any such discussions occurred, they would likely have been at a roundtable meeting early on, and were not noted down either. From my reading of witness interview transcripts, detectives were already leaning toward the suicide theory within four days of Rebecca’s death, crossing off names from their list of possible suspects, including Adam’s, because they thought no crime had been committed.
This whole thing also boils down to local politics, which I covered for many years as an investigative reporter for The San Diego Union-Tribune. If Judge Taylor doesn’t force the SDSD to release any more documents, then the only real chance of getting the criminal case re-opened is to elect a new sheriff, ideally one who has made a campaign promise to do so.
As I reported in my book, whatever instructions Gore gave the panel, those detectives did not re-interview anyone, including Adam Shacknai, nor did they interview anyone new. Nor did they retest any evidence items with “insufficient” DNA, or with mixed DNA profiles from which Adam was excluded. Nor did they subpoena any documents or people, even after I presented new leads and information to them during a private meeting, because that would have involved re-opening the criminal case, which they had steadfastly refused to do. Gore said the review would be done in a matter of a few months, but it wasn’t completed, conveniently, until well after he’d won the election. It was also no surprise that the panel simply reaffirmed the original suicide finding.
When Gore announced his retirement back in July, it was only a matter of days before Undersheriff Kelly Martinez announced her candidacy as his heir apparent, after already racking up a slate of major endorsements. Those ranged from Gore to the Deputy Sheriff’s Association, as well as a number of local, state, and federal lawmakers, some of whom had endorsed Myers in the last election.
This was no coincidence in Myers’ mind. “It’s clear that somebody is not being honest and how this whole thing was orchestrated,” he said, adding that he has his own slate of endorsements, including a number of San Diego City Council members.
Gore had only just promoted Martinez to be the agency’s first female undersheriff in February, three months after she had changed her voting registration from Republican to Democrat. By the look of it, this was a strategic power move to pit her directly against Myers in the primary and try to knock him out of the race.
Congressman Juan Vargas, whose elections I covered for years at the Union-Tribune, was the only lawmaker to publicly explain his support for Martinez, telling the Voice of San Diego that Myers was “unhinged,” “a total idiot,” and “a nutcase. . . I think he would be awful for my community.”
When I asked Myers what could have prompted such harsh outspoken remarks, he suggested that Vargas “didn’t like the fact I called him out publicly for supporting for-profit prison industry.”
What are they so scared of? I asked. “They are afraid that Dave is not going to go along with the status quo,” Myers replied, adding that he doesn’t care about protecting high-profile people from criminal investigations, because they “need to be held accountable and I’m not going to protect anybody. I want to ensure the integrity of law enforcement is upheld.”
I have written more than my share of public record requests for investigative files pertaining to crime or murder cases that I’ve written about, and most of the time I get a flat denial, because investigative records are generally exempt from disclosure in California. So, when the Zahaus filed this lawsuit, I was surprised but pleased when the judge didn’t throw it out. I'm not a lawyer, but it seems to me that Taylor will be setting a precedent if he forces the release of these documents, and that would be significant milestone for the public and for the media.
For example, I—along with others, including Leslie Van Houten’s attorneys and several journalists—submitted public records requests for a set of interview tapes with Charles “Tex” Watson, known as the Tex tapes, for my book, HUNTING CHARLES MANSON. Even though it had been 50 years since the Manson Family murdered nine people, and most of the defendants were either still in prison or had died behind bars, two law enforcement agencies and the Los Angeles District Attorney’s Office all denied the requests, saying those records were protected from disclosure. But they gave two seemingly conflicting reasons. One, the investigation into unsolved crimes by the Manson Family was still open, because there may be more murder victims. Two, Van Houten’s attorneys couldn’t ask for discovery post-conviction, and the tapes contained no new information anyway. Seems ridiculous, right? But that’s the law, such as it is. Until someone challenges it.
By the way, I’m not taking a position in the sheriff’s race, because I need to work with whatever candidate wins. But for the record, I vote for transparency. The McStay family murders are the subject of my next book, so buckle up.