Dec. 17 2014 09:21 AM

San Diego County faces federal lawsuit in a case of mistaken identity

StevenDishman
A mug shot of Steven Dishman, the escaped convict whom authorities were looking for when they mistakenly arrested Alpine resident James Soler

On Jan. 13, 2014, two sheriff's deputies approached a man at his home in Alpine, placed him in handcuffs and said they were taking him into custody for escaping from prison nearly 30 years ago. Standing in his driveway, James Soler and his wife protested, arguing that there must have been some mistake. Nevertheless, the deputies put the 50-year-old man in a squad car and drove away.

In a Kafkaesque sequence, Soler spent the next seven days locked away in solitary confinement at a San Diego jail, was nearly extradited to Arkansas and then, after authorities realized they had the wrong man, was abruptly released.

As a result, Soler, in October, filed a civil-rights lawsuit in federal court against San Diego County, the Sheriff's Department and the public defender who represented him, alleging, among other things, wrongful arrest, false imprisonment, negligence and legal malpractice.

As the case is ongoing, none of the parties involved would comment for this story, including Soler's lawyer, Todd Burns. Everything reported here was gleaned from court records. CityBeat reached out to the American Civil Liberties Union of San Diego and Imperial Counties, which also declined to comment.

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The story starts in 1985, when Steven Dishman escaped from an Arkansas prison while serving a seven-year sentence for burglary. Years later, to alert law enforcement to the wanted fugitive, authorities posted a notice to the Internet with a description of Dishman, which included a forehead scar.

Fast forward to November 2013: Peter Krause, a California interstate rendition officer, issued a warrant for Dishman that included Soler's name as an alias. In the warrant, Krause stated that the Arkansas Governor's office notified him that "Dishman, aka James DeWolfe Soler stands convicted… and is now found to be in the State of California." It's unclear how law enforcement came to believe that Dishman and Soler were the same person.

When deputies showed up at Soler's house in January, Soler told them he hadn't escaped from a prison in Arkansas and that he suspected his neighbors of lodging a false accusation as the result of a long-running feud. One of the deputies said he was aware of the conflict and reassured Soler that a fingerprint check would clear up the matter within hours.

However, when they arrived at the Sheriff's Department substation in Alpine, Soler was told the fingerprinting machine was broken. At the same time, some deputies noticed that Soler didn't match Dishman's description—specifically that he didn't have a forehead scar. One of the deputies volunteered to drive Soler home, but that suggestion was rejected and Soler was taken to San Diego Central Jail, Downtown.

There, Soler continued to tell jail officials that he wasn't the guy they were looking for. The officials responded with "abusive and profane" language, calling Soler a liar.

The next day, Soler went before a Superior Court judge. But he couldn't convince his court-appointed public defender, Salvatore Tarantino, that he wasn't the man authorities were looking for. Tarantino even referred to Soler in court as "Mr. Dishman."

Alleging legal malpractice, Soler and his attorney argue in their lawsuit that after Soler definitively stated he was not the fugitive, Tarantino should have filed a writ of habeas corpus, contesting his detention and extradition.

"If I can, your honor, Arkansas needs to be notified to come pick him up, that there is no writ going to be filed," Tarantino told the judge, according to the court transcript. "So there is no impediment to them picking him up."

The judge was in midsentence, about to order the extradition, when Tarantino interrupted. Having "just spoke" to an officer involved in the extradition, the public defender said, it's become known that Soler's fingerprints have yet to be compared with those of the escaped fugitive.

However, instead of then challenging Soler's detention, Tarantino suggested keeping his client in jail for seven days while the fingerprints were checked.

"I think the quicker way is to continue this matter for a week," Tarantino told the judge. "They can give me the print comparison. And then if I am satisfied, then I will tell the court again that I am not going to file a writ. And I believe also if, by chance, they don't match, then what they are going to do is ask that he be released."

After a week in solitary confinement, the District Attorney's office dropped the charges based on the fingerprint comparison, and Soler was released from jail. It's not clear why Soler was kept in so-called administrative segregation.

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"The public should be concerned," said Jeremy Warren, vice president of the San Diego Criminal Defense Bar Association. "These are just allegations right now, but, if proven, this was a pretty outrageous violation of the poor man's civil and human rights.

"It's a red flag," he added, "in the sense that way too many things appear to have gone wrong here—that at each step of the way, somebody failed to do their job correctly, and an innocent man suffered."

It's important that policy makers not overreact to such situations by making it increasingly difficult to detain suspects, said former federal prosecutor Jason Forge. "The biggest challenge in the aftermath of such an inexcusable aberration, though, is to avoid the kind of reflex response that would make it too difficult for prosecutors to detain the right man the next time around.

"What's most surprising," Forge added, "is that Mr. Soler's own lawyer requested a one-week delay after learning both that no one had compared Mr. Soler's fingerprints to the fugitive's and that Mr. Soler denied being the fugitive. In this type of situation, the prosecutor and judge feed off defense counsel, who should have demanded an immediate fingerprint comparison."

The lawsuit against the county, which seeks punitive damages, alleges that Soler was wrongfully arrested without probable cause and that his detention was "unreasonably prolonged," calling the county's actions "wanton and reckless." The lawsuit also alleges that the county and the Sheriff's Department failed to employ "reasonable, common sense customs, polices, practices and procedures.

"Put simply," the lawsuit states, "Mr. Soler's available fingerprints could have been compared with the fingerprints of Mr. Dishman before Mr. Soler was arrested or immediately after Mr. Soler was arrested."

In November, the county filed a motion to dismiss the case, arguing that law enforcement arrested Soler in "good faith" based on a warrant in which he was named. The motion also argues that failing to fingerprint Soler doesn't constitute a violation of the Fourth Amendment, which prohibits unreasonable search and seizure. In response to allegations of inadequate policies, practices and procedures, the county argues that there must be a "widespread pattern" and that this was an isolated incident.

The motion to dismiss is scheduled to be heard on Feb. 9 in front of U.S. Court Judge Michael Anello.



Write to joshuas@sdcitybeat.com or follow him on twitter at @jemersmith.

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