Alleged Misuse of Jailhouse Informants Has Orange County Defense Bar Scrambling

Wednesday, July 2, 2014

By Don J. DeBenedictis

Daily Journal Staff Writer

SANTA ANA – Recent revelations that the Orange County district attorney’s office, the county sheriff’s department and the Santa Ana Police Department might have used jailhouse informants improperly and violated suspects’ rights is shaking up a number of other state and federal cases.

Defense lawyers say they believe at least a dozen and probably many more current and long-finished criminal cases need to be reviewed after concerns over how informants were used first surfaced in the ongoing prosecution of Seal Beach mass killer Scott Eugene Dekraai. People v. Dekraai, 12ZF0128 (Orange Super. Ct., filed Oct. 14, 2011).

“It really is causing panic in the defense bar about how to handle our cases,” Marri B. Derby said. “We really have to take a close look.”

In fact, the process has begun already.

Early last week, an Orange County Superior Court judge vacated the conviction and life sentence of a man charged with a gang murder because prosecutors had withheld a jailhouse informant’s notes from the defense.

The next day, a federal judge in Santa Ana considered whether to unseal parts of the grand jury record in a sprawling, multi-defendant gang racketeering case over concerns about how informants may have been used.

Monday, an Orange County senior deputy district attorney acknowledged from the witness stand that he may have improperly kept from a grand jury information that could have impeached another jailhouse informant.

Those incidents only took place because Assistant Public Defender Scott L. Sanders has put on evidence in the Dekraaicase indicating that deputy sheriffs and prosecutors misused informants and violated suspects’ right to counsel and right to learn about exculpatory evidence. In essence, Sanders claims they committed “outrageous government conduct” by encouraging informants to question suspects in serious gang and murder cases but then kept most of the data gathered from defense attorneys.

He filed a series of motions totaling more than 700 pages that detail how he believes informants were misused in more than a dozen murder and gang prosecutions. The motions contend that county prosecutors committed “shocking misconduct … systemic in nature” while overseeing “an unchecked and lawless custodial informant program” employing investigative and discovery practices “rooted in deception and concealment.” Those include “repeated and stunning Brady violations, suborned perjury, and a myriad of other misconduct.”

One motion seeks to block prosecutors from pursuing the death penalty against Dekraai, who shot and killed eight people and injured another at a Seal Beach beauty salon in 2011. Another motion asks Superior Court Judge Thomas M. Goethals to remove the district attorney’s office from the case.

A district attorney spokeswoman did not respond to a request for comment.

The office has fought the motions strenuously throughout the hearing and denied allegations of systemic misconduct or any hint of a conspiracy. However, it has conceded prosecutors made mistakes in some cases.

In fact, midway through the intermittent four-month hearing, Senior Deputy District Attorney Howard Gundy said prosecutors would not use jail cell recordings and information collected by an informant against Dekraai.

One defense lawyer said he believes the problems stem from the sheriff’s department, not the district attorney’s office. Brian Gurwitz, who was an Orange County deputy district attorney from 1994 to 2007, said many people assume “that prosecutors are behind any kind of misconduct in the jail, and that’s just not the norm.”

Prosecutors often assume statements sheriff’s investigators bring them were lawfully obtained, Gurwitz said. “The lesson [from this case] is you can’t assume it.”

He said he hopes the Dekraai hearing leads to reforms, but he doubts Goethals will impose the sanctions against the district attorney’s office that Sanders wants.

Many other criminal defense attorneys in the county are thrilled with what Sanders has already accomplished while also deeply disappointed in a district attorney’s office and some individual top prosecutors they respected and trusted. Several prosecutors, investigators and even a sitting Superior Court judge have testified in the Dekraai hearing.

One defense lawyer said that if public defenders have a lawyer of the year award, it should go to Sanders.

“I think Scott Sanders has done an amazing job on this matter,” agreed Kate Corrigan of Corrigan Welbourn & Stokke APLC in Newport Beach, the founding president of the Orange County Criminal Defense Bar Association.

Corrigan said she is “dumbfounded” about the accusations and admissions from some top prosecutors. “I’ve worked with these people. … People if they told me, ‘I don’t have anything,’ I’d take their word for it,” she said.

Even days before the Dekraai hearing started, Goethals had ordered one prosecutor, Erik S. Petersen, removed from a set of jailhouse assault cases for withholding evidence that could help the defense. The judge said Petersen intentionally, but not maliciously, violated defendants’ rights.

After the missing material later was turned over, trial was held, but the jury hung, according to one defense attorney, Rudolph E. Loewenstein. People v. Riel, 13ZF0175 (Orange Super. Ct., filed Aug. 16, 2013).

Now, Loewenstein is exploring whether to dig deeper into the case of a different client already convicted of murder. “If there’s anything to it, I don’t know,” he said. “But I have to go after it. I have to follow the thread to the end of the spool.”

In another case, the district attorney’s office stipulated last week to vacating the murder conviction and life sentence of gang member Leonel Santiago Vega after testimony in the Dekraai hearing showed Petersen had withheld many pages of notes from a key informant. People v. Vega, 07CF2786 (Orange Super. Ct., filed July 31, 2008).

Much of the testimony in the hearing has involved two joint federal-state investigations of the Mexican Mafia, known as Operation Black Flag and Operation Smokin’ Aces. Last week, defendants in one of the several cases indicted from those investigation asked U.S. District Judge James F. Selna to unseal portions of the grand jury record so they could check for misuse of informants. U.S. v. Ojeda, SACR 11-148 (C.D. Cal., filed June 29, 2011).

“It’s not realistic to think that this is only a state problem,” defense attorney Derby told Selna. “These are the same witnesses. It’s just a different courthouse.”

Selna denied the motion, ruling the defense lacked “a particularized showing” to justify breaking grand jury secrecy. But he said Derby could try again later as more evidence comes out.

On Monday, the last witness in the Dekraai hearing, Senior Deputy District Attorney James S. Mendelson, acknowledged he may have wrongly withheld from a grand jury information about a defendant that could have allowed the defense to impeach an informant. He said the legal issue was close and that his action “was not part of any conspiracy with the sheriff or the district attorney’s office,” according to a news account.

The case he testified about involved the Aryan Brotherhood and another prison gang. Goethals allowed Sanders to examine Mendelson on that case as a check on the credibility of a sheriff’s deputy who had contradicted testimony from a former U.S. attorney supervisor, Orange County Superior Court Judge Terry K. Flynn-Peister, about investigations of the Mexican Mafia.

Gundy has complained throughout the hearing that testimony has gone far afield of Dekraai and what may have happened with him.

Goethals acknowledged that concern. “Some collateral testimony can be very relevant on issues,” he said.

The judge has given little indication how he will rule. “I could say the issues have become more muddled or become crystallized,” he said Monday.

Goethals has set final arguments for July 25 and said he will rule within a week.

“All I know is he’s … going to do the right thing,” Corrigan said.

don_debenedictis@dailyjournal.com