Zahau Family Lawsuit Against Sheriff's Department Dismissed

By Caitlin Rother

I wasn’t all that surprised when Rebecca Zahau’s family announced this week that they were dropping their lawsuit against the San Diego County Sheriff’s Department. The judge had already indicated several months ago that he was leaning toward ruling in the sheriff's favor.

Nor was I surprised when the family said they were taking a “new” direction to petition the medical examiner to change its finding that Rebecca died by hanging herself from a balcony of the Spreckels Mansion in Coronado in 2011.

The family, which believes that Rebecca was murdered (as do many other people across the nation), called a news conference on the tenth anniversary of Rebecca’s death in 2020 to announce they were going to file this very same petition.

They distributed a letter to reporters, saying they were going to submit it to the ME’s office by the end of the month. However, they never sent the letter, which asked for a change to the death certificate so the manner of death was homicide or undetermined. There was some question whether they should send the “petition” to Dr. Jonathan Lucas, the pathologist who made the original suicide finding and now heads the Los Angeles County Department of Medical Examiner-Coroner, or to the local ME’s office, but the Zahaus never actually submitted it to either agency.

Instead, they chose to file this lawsuit, demanding investigative files they claimed they had never received in their original public-records request, but which are traditionally protected and exempted from disclosure by California law. The family hoped that these requested documents existed, but had no actual proof that they did. All they had were suspicions that documents were being hidden by now-retired Sheriff Bill Gore, whom they accused of being corrupt for hiding and withholding anything and everything that didn’t support the sheriff’s suicide findings.

For one, the Zahaus were looking for written instructions that Gore may have given to a three-person team of detectives he appointed to do a “review” of the case after a civil jury found Adam Shacknai, the brother of Rebecca’s former boyfriend Jonah Shacknai, responsible for Rebecca’s death. At the trial in 2018, the Zahaus argued that she was hogtied, hit over the head, sexually assaulted with the handle of a steak knife, then strangled and lowered over an exterior balcony in the mansion’s rear courtyard.

Adam Shacknai denied all such allegations, calling the Zahaus “posers” who “got lucky” with the verdict. Shacknai wanted to appeal the verdict, but his insurance company settled with the Zahaus for $600,000, against his explicit wishes.

Just hours after that verdict, Gore issued a statement that his department was standing by its suicide findings. He changed course two weeks later, however, after his opponent in the upcoming election, Dave Myers, made a campaign promise to re-open the criminal case if elected.

Gore’s review team waited nine months—conveniently after Gore won re-election—before announcing that the department was sticking to its original suicide findings. This week, Gore declared through an attorney: “I only provided my instructions [to the review team] orally/verbally, either in person or over the phone. Thus, my instructions do not exist in written form and have never existed in written form.”

As I said in my last blog, this is no surprise whatsoever, because officials know that putting anything in writing is discoverable in a lawsuit. However, Greer, who called the whole review process “a charade” carried out only for campaign purposes, said this only supported his corruption allegations.

"The only reason you don't put it in writing is you don't want people to know," Greer told KUSI this week.

Along with detectives’ notes, texts or emails that might support suspicions or evidence that Rebecca was murdered, the Zahaus were also hoping this lawsuit would result in the release of Adam Shacknai’s phone records. Doug Loehner, Rebecca’s brother-in-law, said the lead detective told him in 2011 that her team never collected Shacknai’s cell phone, but they did obtain his phone records.

The Zahaus’ attempts to determine exactly which documents might be hidden from public view came in a request earlier this year to depose Gore, who was named in the lawsuit along with the San Diego County Sheriff’s Department (SDSD), but Judge Timothy Taylor would not allow that.

Greer had predicted as much. “[Gore]’s been evasive. He’s a very good politician and he’s been able to stay one step ahead of us the whole way. There is corruption of some kind,” he said in March, adding that “we’re not sure we’ll ever know what or why he’s doing it.”

For full disclosure, I, too, was hoping more documents would be released, because there are so many unanswered questions in this case that I couldn’t even take a position on whether Rebecca died by suicide or was murdered. I was somewhat optimistic, at least initially, because the judge didn’t immediately throw out the lawsuit and side with the SDSD, which traditionally doesn’t release investigative files. This became murky in this case, though, because the agency wrote a letter to the Zahaus’ first attorney, Anne Bremner, saying it was releasing the “entire” investigative file to her. However, the sheriff’s attorney Robert Faigin said in a declaration for this lawsuit that he didn’t mean that to be taken so literally.

“When I used the term ‘investigative file’ in the Bremner letter, I was referring to a collection of Sheriff’s records that pertained to the Zahau investigation and which the sheriff believed would satisfy Bremner’s request for the sheriff’s ‘investigative file,’” Faigin wrote. “The investigative file generally consists of the case, the recordings, the pictures, search warrants, and other investigative reports such as scene reports, evidence logs, lab reports, autopsy reports, and statements and recorded interviews, for example. I did not intend the term ‘investigative file’ to mean each and every record in the Sheriff’s Department’s possession that mentioned or related in some way to the Zahau investigation.”

I actually have copies of that “investigative file,” which was given to me by two independent sources, and it is true that nothing overtly supporting murder was included.

For the past two years, the Zahaus’ continuing legal battle has kept their fight to re-open the criminal case in the news while they hoped that a new sheriff, who would be more sympathetic to their cause, would ultimately be elected.

The Zahaus filed a request to dismiss their lawsuit without prejudice this week just two days before a long-awaited hearing on the merits of the lawsuit, which had been scheduled for yesterday (Friday, July 8). Although the spin was that they had decided to go in a new direction, it looked more like a pre-emptive move to avoid losing face when the judge rejected the lawsuit.

It was obvious how Judge Taylor was leaning at the last hearing in March when he stated that a public records lawsuit was not the appropriate legal avenue to accuse the sheriff of corruption.

“Whether [the review] was a charade or not is not a question that the CPRA [California Public Records Act] is designed to address,” Taylor told Greer, saying he was ready to decide the case back then. “Let’s just get it on and get the issue resolved for the well being of this family and so that the sheriff can leave office knowing what the rule is.”

Taylor then asked, almost rhetorically, if the Zahaus were stalling because they hoped that their chosen sheriff’s candidate would be elected later in the year.

“I have sensed that this is a stalking horse for waiting until the sheriff is out of office,” Judge Timothy Taylor said at a hearing in March, three months before the June primary. “Am I misreading the situation?”

The Zahaus’ attorney, Keith Greer, replied that he “was trying to put more meat on the bones” by deposing Gore and other experts so he could win his lawsuit and obtain more investigative files that might help bring justice to the Zahau family.

At that time, Greer had already made it publicly known that he was supporting Dave Myers, a retired sheriff’s commander, for sheriff. However, Myers, an LGBT candidate and a Democrat, lost the primary three months later to Undersheriff Kelly Martinez and John Hemmerling, a former head prosecutor for the San Diego City Attorney’s office and a former San Diego police officer.

Martinez was promoted to undersheriff just days before Gore retired, several months earlier than previously announced, and immediately won his endorsement. Martinez had recently changed her political party affiliation from Republican to Democrat in what appeared to be a strategy to knock Myers out in the primary. That strategy worked. Although the sheriff’s race is nonpartisan, voters tend to vote along party lines. Hemmerling is a Republican.

NBC-7 reported this week that they asked the sheriff’s candidates before the June primary where they stood on the issue of the Zahau case: “John Hemmerling said he was willing to reopen the case while Kelly Martinez, who has been with the department for 37 years and is currently acting sheriff, said she was open to an outside agency investigating Zahau's death.” (Martinez is no longer acting sheriff.) I wonder if they will still hold those positions now that Myers is out of the race.

When Greer still hadn’t answered any of the dozen questions Taylor had asked months ago so he could rule on the merits of the lawsuit, officially known as a petition for writ of mandamus, Taylor issued a tentative ruling on Wednesday rejecting the petition.

“By failing to file a merits brief and failing to address the questions the court ordered [the Zahau family] to address, petitioners have failed to carry their burden to establish a violation of the CPRA by the county,” Taylor wrote.

A court spokeswoman said that tentative ruling was vacated on Friday, after Greer had to file a second request for dismissal because the first was missing a signature and other information. The second request was subsequently granted, according to The San Diego Union-Tribune.

Greer said the petition to change the death certificate will be filed with the ME by the end of the month, with the end goal of getting the criminal investigation re-opened “so that Adam Shacknai can be criminally prosecuted. We’re not going to quit until that happens.”

The petition, he said, will include evidence presented at trial and several main arguments:

One, that Lucas based his suicide findings in 2011 on the fact that the bindings around Rebecca’s wrists were loose. He apparently didn’t know that Shacknai had loosened the bindings around Rebecca’s wrists so he could feel her pulse, as he stated during his testimony at trial in 2018.

“Lucas said he ruled suicide because the knots were loose,” Loehner told KUSI.

Two, that the pattern of lividity or livor mortis on Rebecca’s body, which is where the blood settles after the heart stops pumping, bringing a purplish tint to the skin, showed that she had been hogtied with her knees bent, then strangled to death, and lowered from the balcony—not that she hung herself.

“The blood would have gone down from her torso, and her upper body and her legs and stopped when it hit those ropes and you would have black and blue around the tops of those ropes, because the blood couldn’t go any further,” Greer told KUSI. “It was restricted by the ropes. That’s livor mortis.”

According to Shacknai’s timeline, Greer said, Rebecca would have been hanging for three or four hours with her feet at the lowest point of her body. “The blood would have settled,” he said, but “there is zero livor mortis at the lashings on her ankles. There’s no blood pooling in her feet, there’s no blood pooling in her hands, there’s no livor mortis around her lashings on her wrists. So she was clearly tied up when she was alive, killed, and then allowed the livor mortis to set in with her knees bent, before the ropes were cut and the hanging was staged.”

And three, that they have caught Shacknai in a “bald-faced lie” by saying that he cut Rebecca down while standing on a table. Based on the measurements of the ropes binding her ankles together, her hands behind her, and around her neck as she hung from the balcony, Greer said Shacknai would have been cutting three feet above where he said he did.

“That’s powerful, powerful new evidence,” he said.

For more on these points and other exclusive information about this case, you can read my book, Death On Ocean Boulevard: Inside the Coronado Mansion Case, which details all the evidence and theories in this ongoing murder vs. suicide debate. The book has been optioned by Untitled Entertainment and is under development for a TV limited series, with me and Untitled as executive producers. Stay tuned for more on that soon!