Brett Kelman and Brad Heath

The Desert Sun and USA TODAY

PALM SPRINGS, Calif. — A judge issued an arrest warrant Tuesday for former Riverside County District Attorney Paul Zellerbach after he failed to appear at a court hearing to answer questions about an eavesdropping operation so vast it once accounted for nearly a fifth of all U.S. wiretaps.

The warrant, however, will not be sent to law enforcement for Zellerbach to be arrested unless he does not show up for another hearing on wiretaps, now scheduled for Sept. 30.

"He should have been there," said Jan Ronis, the attorney who subpoenaed Zellerbach. "But he just blew us off. We could have had court today."

During a phone interview on Tuesday night, Zellerbach insisted the warrant had been issued in error because of “lies and misinformation.” The former DA said he contacted Ronis after he was subpoenaed to tell him he was unavailable for Tuesday’s hearing. Zellerbach said Ronis agreed to have the hearing be rescheduled, and then had an "ethical duty" to pass that information on to the judge.

Obviously, that didn't happen, Zellerbach said.

Ronis confirmed he got an angry call from Zellerbach after the subpoena but said they never talked about availability.

“No,” Ronis said, “That didn’t happen.”

Prosecutors halt vast, likely illegal DEA wiretap operation

Zellerbach, who served as the county’s top prosecutor from 2010 to 2014, oversaw an astronomical rise in wiretaps, which allowed law enforcement to secretly intercept millions of phone calls and text messages. In 2014, at the request of his office, a Riverside County judge approved 624 wiretaps – three times as many as any other state or federal court. Most of the surveillance was conducted at the behest of U.S. Drug Enforcement Administration agents, who used the eavesdropping to make arrests and seize drugs and cash as far away as New York and Virginia.

Riverside’s new district attorney, Mike Hestrin, dramatically scaled back that surveillance starting last year. And the DEA this year tightened its rules for seeking eavesdropping warrants in state courts, a major shift in how the drug agency carries out its surveillance.

The widespread wiretapping, revealed last year in an investigation by The USA TODAY Network, faced significant questions about its legality. Justice Department lawyers had repeatedly warned agents they were unwilling to use the wiretap evidence in court because they believed the taps could not withstand a legal challenge. And Zellerbach had delegated the duty of approving wiretap applications to lower-level prosecutors, despite a federal law that required him to do it himself.

That second flaw has led to at least two cases in which defense attorneys have challenged the legality of Riverside wiretaps. The first challenge, filed in Kentucky, led a federal judge to say that Riverside had issued so many wiretaps “that constitutional requirements cannot have been met.” The second challenge, filed locally, led to the warrant being issued for Zellerbach.

Zellerbach was subpoenaed to appear in the case of Christian Agraz, 33, an accused drug trafficker who was allegedly caught on a wiretap selling bricks of heroin in 2014.

The former DA did not appear at the hearing in the Agraz case on Tuesday morning, so Judge Michele Levine issued a bench warrant and assigned a bail of $1,500.

Zellerbach won’t face arrest immediately because Levine ordered the warrant “held,” which means it won’t be sent to law enforcement to be acted on – at least not immediately. If Zellerbach misses the next hearing in the Agraz case, then the warrant will be activated.

The process, although confusing, is somewhat normal when witnesses don’t show up to court, said Steve Harmon, the Riverside County public defender.

“It’s never normal for a former DA to be subpoenaed, but bench warrant holds are issued all the time,” Harmon said.

After illegal wiretap, suspects go free and want a refund

Zellerbach is also a former county judge.

If Zellerbach had shown up for the hearing on Tuesday, Ronis said he would have questioned the former prosecutor about why he did not sign the wiretap application that ultimately led to Agraz's arrest. Federal law requires that wiretap applications must be approved by the top prosecutor unless that official is absent. In one case, San Bernardino County prosecutors abandoned a large money laundering case because a Riverside wiretap was sought by the wrong prosecutor.

Zellerbach said in November that he delegated approval of all wiretaps applications. He couldn't remember reviewing a single one.

“I didn’t have time to review all of those,” Zellerbach said. “No way.”

Despite that admission, the DA's Office has continued to defend the wiretaps in court documents, including in the Agraz case, where prosecutors have argued that Zellerbach's mass delegation was legal.

Reporter Brett Kelman can be reached by phone at (760) 778-4642, by email at brett.kelman@desertsun.com, or on Twitter @TDSbrettkelman.