During my last week serving clients as a criminal defense attorney, it was my privilege to help Mr. Randy Berks secure a finding of “Factual Innocence” following his wrongful arrest for the crime of Attempted Kidnapping.
On September 3, 2020, a young woman reported to the Ventura County Sheriff’s Office that a suspicious man pursued her, and attempted to grab her from behind. The incident occurred at the popular “Santa Rosa Valley Park” in Camarillo, California. Given the totality of the circumstances, Sheriff’s investigators concluded that the unidentified suspect intended to force the woman into his vehicle.
With no suspects in mind, Sheriff’s investigators served a series of Geofence warrants on Google and nearby cellular telephone companies. This type of warrant is also known as a “Reverse Location Search Warrant.” The controversial tactic allows law enforcement officers to sift through the mobile phone signatures of any person traveling with a device that permits location data to be transmitted to Google. (Folks, be careful keeping your location data turned “On”!) Once Google produced the data, investigators focused on Randy Berks.
Randy Berks loves the Santa Rosa Valley Park. He often traveled to the park to eat his lunch, relax, and listen to music. He typically parked under a large tree that sits more than 300 meters from where the incident occurred. The tree is the only spot in the sprawling recreational area that offers shaded parking for visitors. Randy’s records show that on September 3, 2020, he picked up lunch at Panda Express, gassed up his truck, and headed over to his favorite tree to eat his food. GPS data obtained from Google proved that Randy entered the park, went directly to his tree, and remained there until he left the park.
Mr. Berks was stunned and utterly confused when deputies pulled him over six months later and arrested him. He asserted his innocence to me from Day 1. He demanded that I get to the truth. He looked frightened and utterly bewildered when he asserted his innocence to me from behind the glass of a holding cell.
We later argued to the Court and District Attorney that the detectives were insufficiently trained in the usage of Geofence data. The warrant also appeared to be extremely overbroad, in that it gathered cell phone data from a 100 acre area, and over a large time frame. This increased the chance that investigators might focus on the wrong person. It also appeared that investigators failed to use expected identification protocols due to a false confidence in the reliability of the Geofence tool. For example, investigators declined to use a live or photographic lineup to see if the victim could identify Mr. Berks prior to arresting him. She previously stated that she could identify the man if she saw him again.
Sheriff’s investigators finally presented a photographic lineup to the victim two weeks AFTER Randy’s arrest and incarceration. She selected his picture and specifically EXCLUDED him as the suspect.
The weak criminal case against Randy Berks melted to a dismissal a week later. Mr. Berks spent three weeks in jail for a crime he did not commit. Randy refused to be satisfied with just a dismissal. He wanted to completely clear his name after being accused of such a heinous offense. Mr. Berks set out with determination to conduct his own investigation. He repeatedly visited the park, scrutinized every word in police reports, used a drone to image the area, conducted his own legal research, and ultimately obtained his location data from Google. Randy forwarded the findings of his investigation to me. The Google data was stunning. It appeared to position him in the area of his tree, not where the crime occurred.
I filed Randy’s Petition for Factual Innocence. It was my privilege to work side by side with Randy. Randy’s successful quest for innocence is described in several articles published by the Ventura County Star. (Click here and here to read about Randy’s fight for justice.) We are very grateful to the Star for covering Randy’s heroic quest for justice!
Randy Berks and I ultimately turned our investigation over to the Ventura County District Attorney’s Office. I assured him that Ventura County prosecutors are ethical and fair. Deputy District Attorney Michael Kern did not disappoint. DDA Kern stated that he would afford Mr. Berks a fair hearing by providing all materials in the possession of the District Attorney’s Office. DDA Kern also meticulously reevaluated the entire case.
DDA Kern went the extra mile to find the truth by utilizing the District Attorney’s CSI capabilities to enhance video of the photographic lineup. The CSI Unit determined that the victim picked Berks’s photograph and excluded him as a suspect. When she pulled his photograph from the lineup array, she handed it to a detective and stated, “Not him.” Ultimately, Kern and his superiors concluded that Randy Berks was, indeed, factually innocent. They chose to join us by asking the Court to formally declare him an innocent man.
Deputy District Attorney Michael Kern is an excellent reflection on the Ventura County District Attorney’s Office. Prosecutors are duty bound to strike hard blows against dangerous offenders. However, they must always act with fairness to ensure that their awesome power is not abused. For this reason, District Attorney Erik Nasarenko expects the highest standard of ethics and professionalism from his deputies. In this case and others, DDA Kern consistently proves that he is worthy of District Attorney Nasarenko’s confidence. Kern exudes a “just the facts” professionalism at all times. Mr. Berks and I will always count ourselves fortunate that his case was reviewed by such a fair and open-minded prosecutor.
The criminal justice system is a human system. The quality of the system should not be measured by an expectation of perfection, because this is impossible to achieve. A sign of greatness emerges when government actors show a willingness to correct mistakes after they occur, because occasional errors are impossible to prevent. The willingness of DDA Kern and District Attorney Nasarenko to “do the right thing” should merit strong public confidence in the integrity of the Ventura County District Attorney’s Office.
The case of Randy Berks demonstrates that even well-intended law enforcement agencies can get it wrong. It is my belief that police officers and prosecutors should be required to undergo advanced training and certification to utilize sophisticated electronic identification tools. Advanced training would assure more accurate analysis, report writing, and search warrant applications.
Google recently announced that it will no longer store the type of data on its servers that led to the arrest of Randy Berks. It is just a matter of time, however, before law enforcement agencies identify other data aggregators with similar customer databases.
I wish Randy Berks the very best in life. It was my privilege to serve as his attorney. He is smart, humble, and courageous. His quest for justice will hopefully offer a ray of hope to others when the justice system occasionally gets it wrong.
