People v. Dekraai - Recusal Motion

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MOTION Defendant Scott Dekraai hereby moves this Court for an order recusing the Orange County District Attorney's office from prosecuting this case. Said motion is based upon this notice and motion, these Points and Authorities, Penal Code section 1424, Dekraai's state and federal right to due process and a fair trial, the exhibits, the attached declaration of counsel, the previously filed Motion to Dismiss the death penalty and that motion's attached exhibits, and the testimony and evidence presented at the hearing on the motion. It is requested that the previously filed Motion to Dismiss be incorporated by reference and all analysis and argument contained therein be considered in the Courts ruling on this motion. /// ///
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STATEMENT OF THE CASE Defendant Scott Dekraai was arrested on October 12, 2011 and taken into custody. On October 14, 2011, the prosecution filed a complaint against Dekraai in case number 11CF2781. 2 On the same date, Dekraai appeared for arraignment on the Complaint while represented by private attorney Robert Curtis. The arraignment was continued at Dekraai's request to October 24, 2011. 3 On January 24, 2012, the prosecution first provided discovery related to Dekraais contact with Inmate F. 4 According to that discovery, on October 19, 2011, at approximately 2:30 p.m., members of the Dekraai prosecution team, which included Assistant Orange County District Attorney (OCDA) Dan Wagner and Senior Deputy District Attorney Scott Simmons, OCDA Investigator Bob Erickson, Seal Beach Police Department (SBPD) Detective Gary Krogman, and Orange County Sheriff's Department (OCSD) Deputies Ben Garcia and Bieker, met with an Orange County Jail inmate named Inmate F. at the Orange County Jail. Inmate F. was questioned about statements made to him by Dekraai while the men were incarcerated together at the Orange County Jail. After interviewing Inmate F., several members of the prosecution team met with OCSD personnel and requested that a covert audio recording device be installed in
An indictment against Dekraai was filed on January 17, 2012, under the current case number. Pursuant to Evidence Code section 452, subdivision (d)(1), Dekraai respectfully requests the Court take judicial notice of the minute orders from October 14 and October 24, 2011, in case number 11CF2781. Dekraai is honoring the prosecutions previous request to use Inmate F. in place of his actual name. Additionally, similar language is being used in place of other individuals names mentioned in this brief, who have pending matters, where facts related to their case are discussed. Oscar Moriel, another informant referenced in this motion, is being identified by his actual name as prosecutors have revealed his identity in discovery in multiple cases. Moriel has also testified in three trials using his complete name.
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Dekraai's cell at the Intake and Release Center. The device was installed on October 19, 2011, and began recording that day at 5:37 p.m. The device recorded conversations in Dekraai's cell from that date and time until October 25, 2011, at 4:39 a.m. 5 The device was removed from Dekraai's cell on October 25, 2011, and the recordings were copied to a compact disc. The recording device captured a number of conversations between Dekraai and Inmate F. Dekraai's counsel, Assistant Public Defender Scott Sanders, filed an informal request for discovery on October 16, 2012, seeking discovery exclusively related to Inmate F. (Exhibit A. 6) The prosecution had provided the discovery requested in paragraph one. None of the other requested items had been discovered. (Exhibit A.) On October 19, 2012, Sanders and Wagner 7 spoke about the informal discovery request. Wagner said he would not provide the requested discovery, as he did not intend to call Inmate F. as a witness. Sanders stated that, nonetheless, the defense intended to call Inmate F. at a motion to suppress Dekraai's recorded conversations with Inmate F. as violative of Dekraai's Sixth Amendment right to counsel. Wagner reiterated that he would not provide the requested discovery absent an order from this Court. (Exhibit A.) On December 28, 2012, Dekraai filed a Motion to Compel Discovery, seeking the discovery identified in the informal discovery request. (Exhibit C.) On January 18, 2013, the prosecution filed its Opposition to Defendants Motion to Compel Discovery, arguing the Court should not order disclosure of any of the identified items within the discovery motion. (Exhibit D, p. 7.) On October 24, 2011, Dekraai appeared in court and the Public Defender was appointed to represent him. In this brief and the attached declaration of counsel Dekraai is using and citing to the same exhibits attached to the Motion to Dismiss the death penalty. The exhibits that are only found in this motion begin with Exhibit A8. Individuals referenced in this motion will hereafter be referred to only by their last names for clarity and brevity, and not out of disrespect. 4 Recusal Motion - Dekraai
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On January 24, 2013, Dekraai filed a Reply to the Prosecutions Opposition to Defendants Motion to Compel Discovery. (Exhibit E.) On January 25, 2013, this Court heard oral argument on Defendants Amended Motion to Compel Discovery. This Court ordered the items requested in Defendants Motion to Compel Discovery. On February 8, 2013, the prosecution provided 45 DVDs. The DVDs included 5,490 pages related to Inmate F. There are an estimated total of 1,936 audio and video files with an approximate total length of approximately 970 hours. On February 13, 2013, the prosecution provided a single CD with 271 pages related to Inmate F. On March 21, 2013, the prosecution provided 68 CDs, including one with 2,479 pages of discovery related to Inmate F. On April 5, 2013, the prosecution provided 13 pages of discovery related to Inmate F. On April 11, 2013, the prosecution provided 14 pages of discovery related to Inmate F. On June 7, 2013, the prosecution provided 3 CDs and 16 pages of discovery related to Inmate F. On September 27, 2013, the prosecution provided a single one page memorandum related to Inmate F. On January 31, 2014, Defendant filed a Motion to Dismiss, seeking an order from this Court prohibiting a penalty phase in this case, should Dekraai be convicted of the special circumstances murders alleged in the indictment, or alternatively, an order dismissing the special circumstances allegations. // //
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SUMMARY OF FACTS AND BASES FOR RECUSAL Scott Dekraai was arrested for the murder of eight people and attempted murder of another person in Seal Beach on October 12, 2011. Several days later, a veteran custodial informant who was facing two potential life sentences elicited incriminating statements from Scott Dekraai at the Orange County Jail. This occurred after Dekraai and Inmate F. were moved into adjoining cells. Inmate F. shared notes documenting his conversations with his lead handler, OCSD Deputy Ben Garcia. Garcia spoke by telephone with DA Investigator Erickson and then met the next day with members of the prosecution team, including Wagner and Simmons. After the meeting with Garcia, the prosecution team spoke with Inmate F. off the record. During that portion of the conversation, they purportedly received assurances that Inmate F. was not seeking a benefit for his assistance but only helping because of his moral outrage about the crime and his hatred of Dekraai. Once they began recording the interview with Inmate F., he restated the same motivation for providing assistance. During the recorded portion of the interview, none of the six members of the prosecution team who were present asked a single question that would have cast doubt upon the veracity of Inmate F.s stated motivations for providing assistance or revealed that Inmate F. had been working in the jails for the government for more than one year. Inmate F. stated that he asked Dekraai about the crime before Dekraai provided incriminating statements. Members of the prosecution team knew that even in the absence of specific direction by the government, Inmate F.s status both as an informant and as an unsentenced defendant facing two life sentences, incentivized him to troll the jails for information helpful to the government. As such, prosecution team members knew that statements obtained in response to deliberate elicitation violated Dekraais right to counsel under the Sixth Amendment. Nonetheless, having already reviewed Inmate F.s notes in violation of Massiah, the prosecution team continued to question Inmate F. in order to obtain as much information as possible about what he had learned from Dekraai. The prosecution team ultimately received a wide range of information about 6 Recusal Motion - Dekraai
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Dekraai, his mental health issues, and the crime. However, they decided to go even further by questioning Inmate F. about Dekraais defense strategies, including what plea he was considering in the case. Subsequent to the interview, a recording device was placed in Dekraais cell which captured additional incriminating statements made after virtually non-stop efforts by Inmate F. to ingratiate Dekraai and win his confidence. After being informed of Dekraais potential defense strategies and mental health issues that could be relevant to the defense, the Dekraai prosecution team initiated a separate and aggressive effort to obtain Dekraais psychological records, which included making contact with Dekraai and asking for a release of his psychological records, even though he was charged and had counsel at the time. After that effort failed, the prosecution obtained a search warrant without the appointment of a special master for the records based upon a misleading affidavit. The records were seized despite a court order directing the prosecution not to take possession of the records until the court ruled on the legality of the search warrant. The records were then taken to the court where they remain. The prosecution turned over the evidence related to Inmate F. approximately three months after the interview was conducted and recordings were obtained. However, Ericksons report regarding the interview of Inmate F. continued to hide the prosecutions knowledge of Inmate F.s informant background. The reports suggested that what transpired was simply a matter of coincidental contact between inmates. However, information known to defense counsel and its own investigation about Inmate F. raised suspicions that the prosecution was holding back significant information about Inmate F. The defense requested additional evidence informally and later brought a formal motion for discoveryafter Wagner refused to turn over any evidence related to Inmate F.s background. Responding to Dekraais Motion to Compel Discovery, Wagner submitted a declaration in support of his opposition, in which he claimed the prosecution would not give Inmate F. any consideration for his efforts and reiterated Inmate F.s statement that he 7 Recusal Motion - Dekraai
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was not seeking any benefit. Wagner made this statement without revealing Inmate F.s criminal and informant history, which would have impeached the informants stated motives and suggested a conspiracy of concealment by the entire prosecution team initiated before their interview of Inmate F. In fact, evidence and information in the governments possession revealed Inmate F. to be a) a former Mexican Mafia leader who had directed violence against fellow inmates; b) an inmate on the verge of federal RICO prosecution because of his role in the Mexican Mafia, who avoided that prosecution because he was permitted to become a government informant; and c) a defendant who was seeking to be released from custody as soon as possible and trained to believe that the more valuable assistance he provided the greater the benefit he would receive in his pending cases. But the concealment did not end there. Wagner waited until eight months after the discovery hearing to reveal a memorandum, entitled Informant Assistance, sent in November 2011 by his investigator to Deputy DA Erik Petersen. Petersen, who is the prosecutor assigned to Inmate F.s two Third Strike cases, and had begun using him as a custodial informant after obtaining a conviction in one of the cases. The Informant Assistance memo contradicted Wagners representations designed to convince the Court not to order discovery, and showed that the Dekraai prosecution team very much wanted Inmate F. to receive consideration for his assistance in the instant matter. The letter also directed Petersen not to reveal Inmate F.s assistance in Dekraai in any other cases. After this Court ordered discovery, Wagners interviews of Inmate F.s handlers provided additional evidence that Wagner remained steadfastly committed to concealing information that would reveal a) additional evidence of informant activities by Inmate F., b) potential Massiah violations in other cases, including a special circumstances gang murder case, People v. Inmate I., c) the role of Petersen and potentially others in those violations, and d) evidence that Petersenlike Wagnerhad concealed proof of Inmate F.s informant background so that he could also unlawfully introduce statements by a defendant in a murder case. There was more to be learned about a lawless custodial informant program and the 8 Recusal Motion - Dekraai
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prosecutions stunning lack of respect for its discovery obligations in other documents found within the Court-ordered items. Discovery from the nine cases that was provided per this Courts discovery order included varying quantities of notes written by a second custodial informant named Oscar Moriel. Eight of the cases were connected to a multiagency investigation by the Santa Ana Gang Task Force, entitled Operation Black Flag, which led to numerous local and federal prosecutions. The prosecutor on each of the local cases and those cases arising from a related effort, Operation Smokin Aces, is Petersen. Petersen was assigned 17 cases, involving 63 defendants, related to these operations. The ninth case included per this Courts discovery order is People v. Inmate I., which is referenced above. The discovery from one of the nine cases, People v. Inmate E., contains the largest quantity of Moriels notes. A study of names identified in that set of notes and the cases associated with those names would eventually illuminate shocking misconduct specific to the custodial informant program, and with implications that extend far beyond it. Among the most important findings are those directly relevant to the claim that Inmate F. made coincidental contact with Dekraai. It would eventually become clear that there is rarely anything coincidental about the contact between informants and the fellow inmates who make incriminating statements in the local jails. Rather, the Special Handling Unit of the OCSD, often in coordination with local law enforcement and the OCDA, coordinate the movements of inmates in order to facilitate the elicitation of the statements. The problem for the criminal justice system is that the partners on the prosecution team have been trained to work in unison to hide evidence that would reveal these coordinated movements, despite Brady obligations and frequent Sixth Amendment implications. In fact, there has been one constant in their documented efforts: the prosecution never turned over a single report or note that revealed that they had coordinated contacts between targeted inmates and the two informants, despite its obvious relevance to both Sixth Amendment issues and the credibility of the informants rendition of how statements were obtained. 9 Recusal Motion - Dekraai
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The truth about these movements was not revealed by the government, which had the obligation of candor. Instead it was the overactive pens of Moriel and Inmate F., which unintentionally began to offer long delayed insights about the program. In selected entries found within the notes of Moriel and Inmate F., it increasingly became clear how the government makes its custodial informants so incredibly efficient and effective, revealing systemic issues of deception, which further delegitimizes the Dekraai prosecution teams description of the events surrounding the contact between Inmate F. and Dekraai. But there was far more to learn from a study of the notes, the names identified in the notes, and the cases associated with those individuals. Those cases are discussed in detail within the declaration, attached herein as Exhibit A8, and within the Motion to Dismiss. The following is an extremely brief overview: In People v. Vega, the prosecutor hid critical informant notes that would have revealed a Massiah violation. He repeatedly misled court and counsel about discovery issues, and suborned perjury from two veteran detectives and Moriel. In People v. Rodriguez, the prosecutors acts of concealment included hiding Moriels notes that would have revealed false claims of coincidental contact, and evidence related to the Henry Cabrera cover up. The prosecutor also suborned perjury from both detectives. In People v. Inmate I., the prosecutor again hid evidence that would have showed the false claim that Moriel had coincidental contact with both Inmate I. and Inmate F. 8, hid evidence of third party culpability provided by Moriel, and suborned perjury regarding Moriels notes. In People v. Camarillo, the prosecutor suborned perjury from Moriel, and hid notes that would have impeached the perjured testimony. In People v. Luis V., the prosecution team hid statements made by two inmates to Moriel indicating that the defendant had not committed the crime for which he was incarcerated. In People v. Lopez, at least one SAPD detective hid a statement received
There have been significant recent developments in People v. Inmate I. since the filing of the Motion to Dismiss. As discussed in detail at page 57, Petersen unintentionally admitted to discovery violations at the most recent hearing in People v. Inmate I., dated January 21, 2014. 10 Recusal Motion - Dekraai
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by Moriel indicating that another individual was responsible for the victims death. In the Henry Cabrera cases, several prosecutors and members of law enforcement engaged in a conspiracy over several years to conceal evidence of an inaccurate expert opinion about gang membership that supported two convictions, including one which led to a life sentence. Prosecutors went so far as to not charge Cabrera in a gang homicide in order to prevent Cabreras conviction from being overturned, to protect reputations of the conspirators, and to hide the erroneous expert opinion and misconduct from other defendants entitled to learn about what had taken place. The stunning disinterest in defendants rights revealed in the study of these cases is systemic and relevant to analyzing whether the Dekraai prosecution team can be reasonably relied upon to hand over evidence helpful to the defense relating to issues of aggravation and mitigation. The tremendous and wide-ranging implications for the OCDA, its partner agencies, fellow prosecutors and members of law enforcement, and the possibility that adverse findings could result in recusal and the dismissal of the death penalty in this case, place any local prosecutor who would replace Wagner and Simmons in an identical position. They would face inordinate pressure to remain consistent with the clearly and repeatedly stated OCDA position denying the veracity of the allegations, particularly in light of the implications of the misconduct, which are discussed: 1) Assistant Deputy DA Dan Wagner, a supervising attorney and director of the OCDAs homicide unit, led the Dekraai prosecution team in committing numerous serious ethical and legal violations in the instant matterentering into a conspiracy designed to mislead court and counsel beginning before their first recorded interview with custodial informant Inmate F. on October 19, 2011, with the intention that the conspiracy continue through pre-trial motions, trial and any appeals in this case. Evidence of systemic efforts to mislead regarding Massiah violations appeared in a study of People v. Vega. In that case, Petersen led a similarly modeled conspiracy that achieved the ultimate goal: introduction of 11 Recusal Motion - Dekraai
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statements in violation of Massiah, without counsel, the trial court, or the Court of Appeal ever detecting the misconduct; 2) Wagner violated Brady by preventing disclosure of evidence related to Inmate F. in other cases where he was a government informant. This was done to prevent the Dekraai defense team from learning more about the scope of Inmate F.s informant activities, and thereby revealing that the Dekraai prosecution team was engaged in a cover up of those activities; 3) As the director of the homicide unit, Wagner and the Dekraai prosecution team demonstrated wanton disregard for legal and ethical guidelines designed to protect defendants due process rights. Wagners unwillingness to honor these responsibilities strongly indicates that policies discouraging Brady compliance and encouraging concealment have been actively promoted by OCDA training and/or passively endorsed. Corroboration that the OCDA has created a culture that devalues Brady and discovery obligations emerges from the study of the numerous cases addressed in this motion and the Motion to Dismiss the death penalty, where similarly shocking misconduct is detailed; 4) The OCDA led a persistent media campaign against Dekraai and his counsel to blame them for the delays in this case that was shockingly misleading and unethical considering their role in hiding evidence from the defense related to Inmate F. and the custodial informant program; 5) The custodial informant program operates within the Orange County jails so that local prosecution teams (the OCDA and local law enforcement assigned to cases) are able to secretly direct informants to question fellow inmates and/or facilitate contact with inmates to enable the elicitation of statements. This is done without any concern about whether the statements are elicited in violation of the Sixth Amendment or other laws. Evidence that the prosecution hides and manipulates the discovery of informant evidence is discussed in the Motion to Dismiss and the declaration attached to this motion. This evidence corroborate 12 Recusal Motion - Dekraai
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that the OCDA understands, endorses, and at times, guides these practices, so that they can receive the full benefit of introducing statements while circumventing Massiah; 6) Members of the Special Handling Unit of the OCSD have admitted to having regular communication with their custodial informantsInmate F. and Oscar Moriel each worked for the government on a daily basis for a year. Between the two informants, there are only 5 reports totaling 20 pages, which memorialize statements made by these informants to members of OCSD. However, the OCDA has failed to disclose to either Dekraai or any of the nine defendants for whom discovery was also provided, a single report or note documenting any direction given to informants by a member of the Special Handling Unit. Prosecutors have also not discovered a single page of notes written by members of the Special Handling Unit, despite this Courts order that would have required their disclosure if they existed. The absence of any such discovery confirms a policy of the Special Handling Unit, authorized by the OCDA, to destroy notes and/or to discourage the documentation of statements made to or received from custodial informants unless absolutely required to support a possible prosecution. In view of the willingness of local prosecution teams to elicit statements in violation of the Sixth Amendment, there is every reason to believe that prosecutors have obtained information from scores of defendants about their charged crimes and/or privileged communications between defendants and their counsel, which were never revealed to counsel for the defendants; 7) Members of the Special Handling Unit and local law enforcement who have had contact with informants have been trained not to document the movements of informants and their targets in reports or notes, so that prosecutors and their informants can misrepresent their communications with targeted inmates as mere coincidental contact. Nonetheless, these practices are now understood through 13 Recusal Motion - Dekraai
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selected statements found within informant notes (primarily located within the discovery in People v. Inmate E.) and corroborated by housing records. These practices raise questions about the reliability of all prior convictions in which custodial informants were called as witnesses. Evidence that would have rebutted the coincidental contact scam was hidden in four litigated cases discussed herein. Based upon the practices identified, all prior convictions obtained by the OCDA based upon the use of custodial informant witnesses should be reexamined for potential petitions for habeas corpus relief; 8) The Special Handling Unit regularly relocates informants and targets housed within the Orange County jails into nearby housing locations, including disciplinary isolation modules. The use of the Dis-iso scamplacing an informant and his target in disciplinary isolation to convince the target that the person building a friendship with him is not an informanthas proven to be an extremely effective tool. However, the evidence that is obtained after a target is placed in isolation based upon false or trumped-up rules violations certainly rises to the level of outrageous governmental conduct. A rule violation that is unsupported by a good faith factual determination violates Cal. Code Regs. tit. 15, 1080 1084, which regulates placement in disciplinary isolationand is akin to making a false arrest to permit the collection of evidence. Statements obtained in this context amount to outrageous governmental conduct, and may potentially lead to their exclusion even if elicited prior to the filing of charges putting in jeopardy the prosecutions of numerous local and federal investigations, including Operation Black Flag and Operation Smokin Aces. This practice has additional, serious implications if fabricated findings and supporting evidence of rules violations have been placed in inmates permanent files, affecting their incarceration status in local and federal facilities. These practices further support the need to reevaluate all convictions in which the prosecution obtained information from custodial informants for potential 14 Recusal Motion - Dekraai
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habeas corpus relief. Based upon the findings in this case, any and all defendants whose cases included testimony from custodial informants should be permitted to reexamine the circumstances leading to their contact with the informants; 9) Evidence discussed herein and in the Motion to Dismiss demonstrates that the OCDA discourages accurate documentation of confidential informant efforts within the agencys Confidential Informant (CI) files. The evidence indicates that the OCDA has refused to take logical steps to ensure that all informant efforts connected to a particular Deputy DA or police agency will be identifiable by prosecutors who have discovery obligations related to their informants. This is shown powerfully by the OCDA CI file for Inmate F., which is missing entries for three capital defendants from whom Inmate F. elicited statements: Scott Dekraai, Daniel Wozniak and Inmate M. There is yet a fourth defendant who was charged with attempted murder, Inmate S., for whom there is also not an entry. Neither Dekraai nor any defendant housed in the Orange County jailsparticularly those defendants charged with very serious crimescan have any reasonable confidence that they have been provided with all statements shared with the prosecution by its network of custodial informants. These concerns are further enhanced by the conduct of the Dekraai prosecution teamled by the supervisor of the OCDAs homicide unit demonstrating that this agency and its leadership believes it acceptable to work with informants to collect information about privileged defense information, including strategies; 10) Prosecutors necessarily rely upon the informant witnesss CI file to comply with their Brady obligations, by identifying prosecution files that contain other statements by the same informant. However, the complete indifference and lack of meaningful oversight by the OCDAs leadership in maintaining a reliable filekeeping systemallowing some prosecutors to hide entries and others to make 15 Recusal Motion - Dekraai
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entries through negligenceassures that many defendants fail to receive Brady discovery regarding informant efforts to which they are entitled. As such, every past conviction in which an informant has been used, whether custodial or otherwise, should be reviewed to determine whether the defendant was deprived of evidence that would have had a bearing on the witnesss credibility. This could potentially require the reexamination of hundreds to thousands of cases; 11) Those who have access to evidence received via the custodial informant program have repeatedly shown their belief that evidence collected from informants that is helpful to the defense of charged or convicted defendants, including evidence that defendants are innocent, can be withheld from those defendants. This is demonstrated in People v. Inmate I. (concealment of informant notes indicating that another individual admitted to one of the charged murders); People v. Ricardo Lopez (the concealment of informant notes discussing another individuals culpability in a murder for which Lopez is serving a life sentence); People v. Luis V. (concealment of statements by two inmates to an informant indicating that Luis V. did not commit the attempted murder for which he was charged); and People v. Henry Cabrera (concealment of statements received by an informant indicating that Henry Cabrera was improperly serving a life sentence for membership in a gang of which he was not a member.) Local prosecutorial agencies have decided that informants should be available solely to further the prosecutions narrowly defined view of success: a win for the prosecution. Considering the relatively tiny quantity of notes obtained by Dekraai as compared to the universe of informant notes, the only reasonable conclusion from this study is that that prosecution team members have routinely concealed such evidence relevant to the accuracy of criminal allegations;
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12) Petersen, Mark Geller, and Rahul Gupta elected not to pursue special circumstances murder allegations against Henry Cabrera for the murder of Ruben Cabanas because the effort would have undermined the viability of Cabreras current life sentence (arising out of a jurys incorrect finding about gang membership), demonstrated years of concealment by numerous prosecutors and members of law enforcement, undermined the credibility of SAPDs most experienced gang officer and other officers who either furthered the cover up or had knowledge of it and did nothing, revealed significant Brady violations affecting numerous cases, and required re-examination of thousands of cases in which the wrongdoers participated as prosecutors or investigators. This evidence also further corroborates that the OCDA has failed to set up any meaningful oversight system, which is necessary to ensure that prosecutors and local police agencies adhere to legal principles and ethical rules; 13) The misconduct committed by Assistant DA Wagner, Deputy DA Simmons, Deputy DA Erik Petersen, Deputy DA Mark Geller, Deputy DA Steven Schriver, Deputy DA Rahul Gupta, DA Investigator Robert Erickson, SBPD Detective Krogman, Special Handling Deputy Ben Garcia, Special Handling Deputy Seth Tunstall, SAPD Detective David Rondou, SAPD Detective Matthew McLeod, SAPD Detective Charles Flynn, and former SAPD Detective Ronald Castillo, requires the re-examination of each and every case in which they were either an assigned prosecutor or assigned investigator. This could lead to the reexamination of thousands of cases; 14) There should be immediate habeas corpus review in the following cases discussed and further identified herein: People v. Vega, People v. Ricardo Lopez, People v. Camarillo, People v. Henry Cabrera I, People v. Henry Cabrera II, People v. Brambila II, People v. Galarza, and People v. Gabriel C., as a result of the misconduct and newly discovered information detailed in these motions;
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15) Erik Petersen is the sole assigned prosecutor in each of the Operation Black Flag and Smokin Aces cases. As of February 13, 2014, there were 56 remaining defendants and 10 defendants already convicted, associated with these operations. Petersens stunning and sustained misconduct in his prosecution of People v. Vega, People v. Camarillo, People v. Rodriguez, People v. Inmate I., his rampant deception, suborned perjury of Oscar Moriel with the knowledge of Special Handling Deputy Seth Tunstall, and concealment of informant notes calls into question the reliability of each of the identified Mexican Mafia prosecutions; 16) Petersens misconduct, including his efforts to suborn perjury of Operation Black Flag informant Oscar Moriel, has likely caused irreparable damage to numerous pending federal Black Flag prosecutions that rely upon Moriels testimony and undermine the reliability of informant evidence related to those prosecutions. (It is also unlikely that Petersen shared with federal authorities that Inmate F. committed perjury at his own trial, and as a result likely was not introduced during his grand jury testimony in federal proceedings.); 17) Petersen has apparently hid from alleged Delhi gang members whom he has prosecuted that he had a potential bias against them: he had purportedly been threatened by Delhi gang member Leonel Vega after the prosecutor obtained a special circumstances murder conviction marred by massive misconduct. The decision to conceal this threat also implies a significant lack of oversight by supervising attorneys, who seemingly would have required that this personal motive be revealed to defendants charged with crimes related to alleged Delhi activity; 18) An independent prosecutorial agency should examine whether Petersen should be prosecuted for suborning perjury in People v. Vega, People v. Rodriguez and People v. Camarillo. A prosecutorial agency should also examine whether
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Moriel (in Vega and Camarillo), Rondou (in Vega and Rodriguez) and McLeod (in Rodriguez) should be prosecuted for committing perjury; 19) The misconduct detailed in these motions may have significant impact on pending legislation opposed by the California District Attorneys Association, and permit a jury instruction helpful to the defense regarding that misconduct. On February 7, 2014, the California Assembly passed a proposed Penal Code Section 1127j, which states the following: (a) In any criminal trial or proceeding in which the court determines that the prosecuting attorney has failed to disclose specified materials and information required under current law, including Section 1054.1 and Brady v. Maryland (1963) 373 U.S. 83, the court shall instruct the jury that the intentional failure to disclose the materials and information occurred and that the jury may consider the failure to disclose any circumstantial evidence to support the presence of reasonable doubt. (California Assembly Bill No. 885, introduced Feb. 22, 2013 by Assembly Member Ammiano, and attached herein as Exhibit A10; Aleaziz, Bill Would Bolster Brady, Daily Journal (Feb. 3, 2014), attached herein as Exhibit A11.) This legislation will now be subject to a vote by the California Senate. The California District Attorneys Association is opposed to it. The CEO of that organization, Mark Zahner, stated that, Youre talking about extremely rare instances happening in speaking of Brady violations. (Exhibit A11.) The Motion to Dismiss reaches a very different conclusion, with the supporting evidence suggesting that Brady violations are common, often egregious, and relentlessly hidden by prosecutors and their agents. Therefore, the OCDA has yet additional incentives not to acknowledge the wrongdoing alleged in the Motion to Dismiss. Proof of these allegations would severely damage the arguments of Zahner and the prosecutors he represents throughout the state, and lend powerful support for the passage of this legislation. The consequences do not end there. While systemic Brady violations described in the Motion to Dismiss may be a critical factor in
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whether the law is passed, Brady violations specific to Dekraai would support use of a jury instruction modeled after the proposed Penal Code section 1127j. As has been discussed at length, the misconduct by the Dekraai prosecution team undermines any reasonable faith that the prosecution will provide evidence helpful to the defense on issues of mitigation or aggravation. If the legislation passes, Dekraai intends to request an identical jury instruction mandated by the bill, with the exception of replacing the language, the jury may consider the failure to disclose as circumstantial evidence to support the presence of reasonable doubt with the jury may consider the failure to disclose as circumstantial evidence that the prosecution has concealed evidence helpful to the defense that is related to issues of mitigation and aggravation. In essence, while the recusal of Wagner and Simmons is obviously required, another attorney from the same office is situated in an equally conflicted situation. On that prosecutors shoulders would be the burden of protecting their office, other agencies, and their fellow employees from the consequences detailed above. The bases for the conflict have tremendous implications for the future of the OCDA, its attorneys, local law enforcement, the custodial informant program, and federal and state prosecutions. There are implications for the acknowledgement of wrongdoing or adverse findings detailed above. Any Deputy DA who would replace the current prosecutors who determined that the Motion to Dismiss accurately stated the misconduct that has occurred, would also recognize that admitting this could reasonably lead to the following determinations by the public, the judiciary, county supervisors, and legislatures and other prosecutorial agencies: 1) The leadership of the OCDA and the OCSD has, at a very minimum, disserved the criminal justice system through willful indifference to systemic misconduct; 2) The entrenched culture of misconduct both in the OCDA, the OCSD, and the SAPD requires outside investigation, grand jury proceedings, and oversight by independent agencies to assure sustained changes in practices and culture; 20 Recusal Motion - Dekraai
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3) The refusal to heed rules governing disclosure of evidence to defendants suggests that neither Penal Code section 1054 nor Brady are satisfactorily protecting defendants rights to a fair trial and due process in the Orange County criminal justice system. If the allegations are true, members of local and state government may decide that special legislation is required to ensure that the rights of defendants in this county are adequately protected; 4) Although habeas corpus proceedings in California are unfunded, defendants should receive habeas counsel in the cases implicated by this motion, with the costs potentially absorbed by the OCDA if these violations resulted from systemic policies or wide-scale negligence; 5) It is no longer clear that the OCDA will seek convictions, as well as the ultimate punishment of death, in a manner that is fair and which ensures that verdicts will not be subsequently undermined by revelations of hidden evidence and misconduct. The repeated acts of misconduct detailed herein support that concern. Evidence of a moral compass that has gone far off course is seen in the suppression of evidence pertaining to custodial informants, as well as their choice and treatment of informants. For instance, informants such as Inmate F. (who committed perjury at his own trial) and Oscar Moriel (who committed perjury at the trials of others with the help of the OCDA) have also been given extraordinary roles in the criminal justice system and a pass for their extensive criminal history and extreme violence. Oscar Moriel, for instance, is no longer facing a life sentence on his attempted murder because of his cooperation. Yet, he has testified in cases to killing multiple peoplein People v. Camarillo stating that he murdered up to five, maybe six victims. As if his central role in determining the outcome of cases was not sufficiently shocking, the OCDA and local law enforcement have sought to protect his credibility by not investigating his murders. They have done this even though Moriel apparently has been ready and willing to discuss them and could present details that solve cold cases, free those wrongfully charged for the same crimes, and 21 Recusal Motion - Dekraai
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brings closure to victims families; 6) The public, victims and their supporters, as well as defendants and their supporters, can no longer reasonably trust the integrity of the OCDA and local law enforcement to pursue investigations and prosecutions in good faith; 7) The OCDA has caused significant damage to its reputation by having instructed on best practices for an informant program and then helping to create one that is completely inconsistent with those practices. Assistant DA John Anderson and Westminster Police Department Detective William Nye wrote the section on informants for the U.S. Department of Justices Gang Prosecution Manual, which detailed the importance of documenting direction and performance, as well as adherence to Brady. The decision by the OCDA to instead create a program that is dedicated to concealment and violating both Massiah and Brady would appropriately devastate the reputation of the OCDA among local, state, and federal prosecutorial agencies. Additional evidence of the OCDAs inability to examine this case impartially emerged in the last ten days. On February 7, 2014, Wagner requested from this Court a three week sealing period for the Motion to Dismiss to purportedly analyze the motion for possible redactions and additional sealing requests. His request was seemingly based upon the need to work through a heavily detailed 500 page motion (and many thousands of pages of exhibits), which he only had for one week at the time of the request. But after obtaining a temporary order from this Court to seal the Motion to Dismiss, Wagner decided to give strongly worded statements to the media about the allegations contained within the Motion to Dismiss. The prosecutor chose to make this statement at a moment when he knew, in light of this Courts sealing order, that the public and most media organizations would be unable to access the motion to consider whether his response was accurate. But even more surprising was what he said: // // 22 Recusal Motion - Dekraai
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We think much of whats contained in it is untrue and unfounded, said Assistant District Attorney Dan Wagner. There are over-the-top, scurrilous allegations in there Unfortunately, these types of allegations are becoming sort of commonplace ... for defense attorneys its part of their normal litigation strategy. (Arevalo, Dekraais Lawyer Alleges Prosecution Misconduct, Los Alamitos-Seal Beach Patch (Feb. 8, 2014), attached herein as Exhibit A12, emphasis added.) After the Motion was unsealed on February 14, 2014, Wagner told the Orange County Register that the motion is filled with untruths. (Hartley and Jolly, Seal Beach slayings: Allegations of D.A., Sheriff misconduct, O.C. Register (Feb. 14, 2014), attached herein as Exhibit A13.) Wagner unintentionally, but quite compellingly, corroborated that his office is unable to impartially participate in this case: the OCDAs willingness and ability to impartially assess the accuracy of the allegations is disproven when the findings of a purported investigation are announced almost from the outset and well before the investigation has been completed. Wagners comments also signal to each and every attorney from his office who might replace him and Simmons what is expected: ferocious advocacy showing that the defense has made scurrilous allegations and that most of what is found within the Motion to Dismiss is untrue and unfounded. This message was also advanced as recently as February 14, 2014, a group of prosecutors converged on another courtroom to see an attorney from the homicide unit, Senior Deputy DA Matthew Murphy, assail Sanders honesty in a hearing on a case with related informant issues, People v. Wozniak. As discussed beginning at page 82, that prosecutor suggested that he would magnanimously refrain from pursuing perjury charges against Sandersknowing the claim of perjury was made in bad faith and was intended to intimidate counsel for Dekraai and Wozniak, who had just two weeks earlier made serious allegations in the Motion to Dismiss against his fellow prosecutors. These efforts speak squarely to why Dekraai cannot receive a fair trial from the OCDA. With the words of Wagner and Murphy, a veteran attorney whom he supervises, ringing in the ears of fellow prosecutors, it is illogical to believe that any member of the
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OCDA would proceed impartially with this case and turn over helpful evidence to Dekraai, thereby showing that the prosecution team held back evidence relevant and helpful to the defense in the penalty phase in this case. To do so would devastate the credibility of Wagner, and offer evidence that he and his team members were deceitful. Additionally, acknowledgement of wrongdoing would also bring significant ramifications personally and professionally to the identified individuals, support the sanction requested in the Motion to Dismiss, and damage the credibility of the OCDA as a prosecutorial agency. ISSUES PRESENTED I. WHETHER THE PROSECUTION'S MISCONDUCT HAS CREATED A CONFLICT OF INTEREST WHICH DISQUALIFIES THE ORANGE COUNTY DISTRICT ATTORNEY FROM PROSECUTING THIS CASE? POINTS AND AUTHORITIES Prior to the 1980 enactment of Penal Code section 9 1424, a district attorney could be disqualified when a judge determined the prosecution has a conflict of interest which might prejudice the prosecution against the accused "and thereby affect, or appear to affect," the prosecution's ability to impartially perform the discretionary functions of a prosecutor. (People v. Superior Court (Greer) (1977) 19 Cal.3d 255, 269.) Section 1424 was the Legislature's response to the Greer decision. (People v. Lopez (1984) 155 Cal.App.3d 813, 824.) It requires recusal upon a showing "that a conflict of interest exists that would render it unlikely that the defendant would receive a fair trial." (Pen. Code, 1424, subd. (a).) The California Supreme Court discussed the effect section 1424 had on its holding in Greer in People v. Conner (1983) 34 Cal.3d 141. The court recognized that section 1424 contained a different recusal standard than Greer, but nonetheless held that the statute contemplates both "actual" and "apparent" conflicts. (Id. at p. 147.) However, the distinction between an actual and apparent conflict is "less crucial" under the statute because of section 1424's additional requirement that the conflict
All further section references are to the Penal Code unless otherwise noted. 24 Recusal Motion - Dekraai
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"render it unlikely that defendant will receive a fair trial unless recusal is ordered." (Ibid.) Section 1424 creates a two-part test to determine whether the prosecution should be recused: (1) Whether a conflict exists; and (2) whether the conflict renders it unlikely the accused will receive a fair trial. (Haraguchi v. Superior Court (2008) 43 Cal.4th 706, 713.) The prosecution's misconduct in this case and in the prior cases involving the use of the custodial informant program has created a conflict of interest, and that conflict renders it unlikely Dekraai will receive a fair trial. Accordingly, the OCDA should be recused from this case. As noted, the first part of the test under section 1424 requires this Court to determine whether the OCDA has a conflict of interest in prosecuting this case. A conflict exists within the meaning of section 1424 "whenever the circumstances of a case evidence a reasonable possibility that the DA's office may not exercise its discretionary function in an evenhanded manner." (People v. Conner, supra, 34 Cal.3d at p. 148.) There is no need to determine whether the conflict is actual or just apparent; both satisfy the conflict requirement. (People v. Eubanks (1996) 14 Cal.4th 580, 591-592.) Further, whether a district attorney has a conflict is not limited to situations where the prosecution has a personal financial or emotional interest in the prosecution. (Id. at p. 595.) To the contrary, the prosecution's impartiality can be impaired by institutional interests. (Ibid.) This first part of the test asks only "whether a 'reasonable possibility' of less than impartial treatment exists ...." (Haraguchi v. Superior Court, supra, 43 Cal.4th at p. 713.) The second part of the test requires a determination whether the conflict renders it unlikely the defendant will receive a fair trial. (Haraguchi v. Superior Court, supra, 43 Cal.4th at p. 713.) This question is answered affirmatively if "it is more likely than not the defendant will be treated unfairly during some portion of the criminal proceedings." (Ibid.) Although section 1424 focuses on whether the accused will receive a "fair trial," the need for "prosecutorial impartiality extends to all portions of the proceedings, not only to the trial." (People v. Eubanks, supra, 14 Cal.4th at p. 593.) The two parts of the test "are to some extent continuous rather than discrete, as many factors relevant to the overarching 25 Recusal Motion - Dekraai
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inquiry may be framed in terms of their effect on the existence of a conflict or its gravity." (Haraguchi v. Superior Court, supra, 43 Cal.4th at p. 717, fn. 13.) Section 1424 further provides that after all parties have briefed the issue, the trial court "shall review the affidavits and determine whether or not an evidentiary hearing is necessary." (Pen. Code, 1424, subd. (a)(1).) The Court of Appeal recently addressed the basis on which a trial court should make this determination in Spaccia v. Superior Court (2012) 209 Cal.App.4th 93. Prior to 1999, section 1424 did not provide for an evidentiary hearing; instead it spoke only of "the hearing on the motion." (Id. at p. 109.) The 1999 amendment to the statute added the language contemplating an evidentiary hearing. (Ibid.) The court found some guidance in the legislative history of the amendment, observing that as originally introduced the bill prohibited an evidentiary hearing unless "there are disputed issues of material fact that cannot be resolved through the use of affidavits. [Citation.]" (Ibid.) Additionally, a committee report for the bill noted opponents of that limiting language argued evidentiary hearings were valuable on the issue of disqualification and thus should be more freely available. (Id. at p. 110.) By comparing the original language of the bill to what was ultimately enacted, the court determined the following: As the language limiting hearings was ultimately rejected in favor of language leaving the issue of whether to hold an evidentiary hearing to the trial court's discretion, we can infer that the Legislature expressly chose not to limit evidentiary hearings to only those situations in which there exist disputed issues of material fact which could not be resolved on affidavits alone. (Spaccia v. Superior Court, supra, 209 Cal.App.4th at pp. 110-111, fn. omitted.) The court thus held it is clear that trial courts have the discretion to determine, after reviewing the affidavits submitted by the parties, whether an evidentiary hearing on a section 1424 motion is necessary. (Spaccia v. Superior Court, supra, 209 Cal.App.4th at p. 111.) The court further held that an evidentiary hearing may be deemed "necessary" even if the movant has not established the existence of disputed issues of material fact which cannot be resolved solely through the use of the affidavits. (Ibid.) On review, a trial court will have abused its discretion in denying an evidentiary hearing if the defendant makes a 26 Recusal Motion - Dekraai
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prima facie showing for recusal. (Ibid.) "A 'prima facie' showing refers to those facts which will sustain a favorable decision if the evidence submitted in support of the allegations by the petitioner is credited. [Citation.]" (Ibid.) In so holding, the court analogized the necessary showing in a recusal motion with the showing a parent must make to obtain a hearing on the modification of a dependency order under Welfare and Institutions Code section 388, and the showing an inmate seeking habeas relief must make to obtain an order to show cause. (Ibid.) In the instant case, Dekraai has certainly made a prima facie case that recusal is required, and thus this Court should conduct an evidentiary hearing on the issue. FACTS OCDAs Understanding of Proper Administration of Confidential Informant Program The leadership of the OCDA is undoubtedly well-versed on the prohibition against eliciting statements from charged and represented defendants under Massiah v. United States (1964) 377 US 201, and appreciative of their legal and ethical obligations with regard to discovery. The OCDAs recognition of the vital importance of ensuring that an informant program operating within the local jails (custodial informant program) honors these legal principles and protects the interests of justice, both for the prosecution and the defense, is documented. The former supervisor of the OCDAs Tri-Agency Resource/Gang Enforcement Team (TARGET) Unit, Assistant DA John Anderson, and Westminster Police Department Detective Mark Nye were given the significant honor and responsibility of writing a chapter in the U.S. Department of Justices Gang Prosecution Manual, which included a section that articulated the fundamental principles of an ethical and successful informant program: // //
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Police and prosecutors should carefully log all benefits conferred on a CI during an investigation and disclose the benefits before trial to the defense. Such benefits are viewed legally as motivation for a CI to favor law enforcement while testifying. Great care must also be given to disclosing to the defense any exculpatory Brady material that might be discovered as a result of the CIs cooperation, Brady v. Maryland, 373 U.S. 83 (1963). [] CIs should only be used after a written agreement is signed that fully discloses the agreement between the CI and the police (in conjunction with the prosecution). Police should also maintain a log of all supervision of and direction given to a CI and document the performance of the CI, both good and bad. It is critical to present the CI in the most accurate light possible to avoid the appearance that the police and prosecution are hiding things. (Exhibit F, p. 21.) As will be shown, Orange Countys custodial informant program not only fails to incorporate the policies of good government articulated above, but has put into place practices to ensure that governmental agencies violate the law in secrecy and with impunity. Inmate F.s Interjection into People v. Dekraai Soon after his arrest for the murder of eight people, Dekraai was moved from a tank in the Orange County Jail (OCJ) where was housed into the same one where Inmate F. was located. Dekraai was actually moved into the exact cell that Inmate F. had been occupying only hours earlier. Just before Dekraais arrival in Mod L Tank 17, though, Inmate F. moved into the adjoining cell. (Exhibit A8, pp. 73-75, 78-79.) Inmate F. befriended Dekraai and ultimately asked him about the crime. (Exhibit A8, p. 93-95.) Their conversations were memorialized in detailed notes by Inmate F. that were turned over to Special Handling Deputy Ben Garcia. (Exhibit A8, pp. 84-85, 87-88.) Prosecutors and members of law enforcement conducted a recorded interview of Inmate F. and shortly thereafter placed a recording device in Dekraais cell. (Exhibit A8, pp. 89-98.) The device captured Dekraais discussions of the crime, his mental state, his meetings with his former counsel, as well as his conversations with jail mental health staff. The device also recorded Inmate F.s persistent efforts to build what Dekraai perceived was a growing friendship
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between the two men. (Exhibit A8, pp. 98-105.) In the prosecution teams single recorded interview of Inmate F., which took place prior to the introduction of the recording device into Dekraais jail cell, Inmate F. explained how he found himself speaking to Dekraai. Inmate F. said that he asked Dekraai why the crime occurred, and then assured him that he really wanted to know what happened. Dekraai purportedly responded by opening up about his life and the incident. After listening to Dekraai, Inmate F. said that his conscience propelled him to contact law enforcement because he believed Dekraai needed to receive the death penalty for his actions and what he expressed about the crime. (Exhibit A8, pp. 91-97.) Neither the recorded interview nor the subsequent reports indicated that Inmate F. was a custodial informant, nor did they explain how Inmate F. and Dekraai came to be housed in adjoining cells. (Exhibit A8, pp. 89-98, 113-114.) It appeared that the prosecution had been the recipient of extraordinarily good luck. The inmate housed closest to Dekraai was a good listener, a great note taker, and someone so selfless that he wanted to assist the OCDA and local law enforcement without wishing for anything in return. OCDA Investigator Ericksons subsequently written report confirmed this picture of Inmate F. (Exhibit A8, p. 114.) The prosecution promised nothing in return for his assistance, which was perfect for Inmate F. because he wanted nothing. (Exhibit A8, pp. 90-92.) Although Inmate F. told the prosecution team he wanted Dekraai to get the death penalty, the recorded conversations presented a vastly different picture of his feelings toward Dekraai. Inmate F. appeared to express genuine affection for Dekraai, calling him brother, offering him food and even guidance to make his life in custody easier. He inquired about Dekraais well-being and his meetings with counsel. (Exhibit A8, pp. 98105.) Per Inmate F.s notes, when he observed Dekraai appearing despondent with his head in his hands, he asked, Whats up? Dekraai began speaking about his life and the crime again. (Exhibit A8, pp. 105-106.) The prosecution did not disclose any evidence related to Inmate F.s contact with 29 Recusal Motion - Dekraai
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Dekraai until three months after the recording device was removed from Dekraais cell. During that window in time, Dekraais private counsel asked to be relieved and was replaced by two attorneys from the Orange County Public Defenders Office. (Exhibit A8, p. 3.) By happenstance, Sanders was serving as counsel for another defendant, Daniel Wozniak, a special circumstances murder case in which Inmate F. had also elicited statements. (Exhibit A8, pp. 26-30.) An entry within court minutes also showed that Inmate F. had been transported to testify in a federal case. (Exhibit A8, p. 116.) It was becoming increasingly clear that the prosecution had been far from transparent in its presentation of Inmate F. However, when defense counsel requested more information about Inmate F.s criminal and informant background, the prosecution refused. (Exhibit A8, p. 2-4.) Nonetheless, all was still proceeding smoothly for the Dekraai prosecution team until January 25, 2013. That was the date scheduled for the hearing on Dekraais Motion to Compel Discovery. Wagner argued, in writing and orally, against disclosure of any information related to Inmate F. In his responsive brief and declaration, Wagner attempted to convince the Court not to order discovery. He conceded and agreed to stipulate that the first prong of a Massiah violation had been met during the time the recording device was placed in the cell. (Exhibit A8, pp. 115-125.) Wagner declared that Inmate F. was (1) acting as a government agent, i.e., under the direction of the government pursuant to a preexisting arrangement, with the expectation of some resulting benefit or advantage (Exhibit D, pp. 6-7, (citing In re Neely (1996) 6 Cal. 4th 901, 915).) However, elsewhere in the same Opposition and in his attached declaration filed under penalty of perjury, Wagner stated that Inmate F. never expected nor wanted a benefit for his assistance. He wrote, The prosecution team told Inmate F. that it would not be giving Inmate F. any consideration or leniency for his efforts. Inmate F. said that he was not looking for any consideration, but that due to the seriousness of the case, he believed the prosecution should hear what defendant had told him. (Exhibit D, pp. 2, 16.) Wagner made another statement in his declaration that seemed equally suspicious 30 Recusal Motion - Dekraai
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though the deception surrounding it would not become clear until September of 2013. He wrote the following: OCDA does not anticipate nor intend to make any request or recommendation for leniency at sentencing as a result of Inmate F.s involvement in the present case and that the prosecution would give a fact-based appraisal of the value to the case, but only [i]f summoned. (Exhibit D, pp. 3, 17.) As will be discussed, neither the Court nor the defense could have known that Wagner and his team were hiding a memorandum to Petersenconcealed for nearly two yearsthat called into question the veracity of Wagners declaration and exposed just how far the prosecution would go to defeat the discovery motion and obtain a death verdict. (Exhibit A8, pp. 107111.) Despite the prosecution's efforts to keep the defense from learning more about Inmate F., this Court ordered compliance with the informal discovery request made many months earlier. The provided discovery related to Inmate F. consists of approximately 5,000 pages and 1,000 hours of recordings. (Exhibit A8, p. 4.) Defendants understanding of the misconduct committed by the Dekraai prosecution team detailed in this motion and the Motion to Dismiss first emerged from a study of Inmate F.s notes found in OCSDs Confidential Informant (CI) files. However, notes written by a second informant named Oscar Moriel, provided perhaps the greatest insights about a discovery shell game used to hide the secrets of a custodial informant program. (Exhibit A8, pp. 146-270.) As will be shown, the OCDA, the OCSD, and local law enforcement have exploited the lack of transparency inherent in an investigative program run within the jails. This has allowed prosecution teams (the OCDA and law enforcement agencies that provide investigative support) to gather evidence, hide the circumstances surrounding the contact between informants and targets, and introduce incriminating statements regardless of the legality of how the statements were received. Inmate F.s Rise to Informant Status and Motivations for His Assistance The Court-ordered discovery has helped illuminate what prompted the prosecutions 31 Recusal Motion - Dekraai
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aggressive efforts to conceal Inmate F.s background. The responsive items included reports memorializing Inmate F.s informant history, his criminal background, as well as prosecution discovery in nine Orange County cases in which Inmate F. was referenced. (Exhibit A8, pp. 7-34.) The discovery revealed that Inmate F.s informant history appears to have begun disastrously 14 years ago, when he sought consideration on his first felony case. An Anaheim Police Department detective submitted an entry in the OCDAs CI file for Inmate F., which states the following: [Inmate F.] WAS TERMINATED AS A C.I. DO NOT USE AS A C.I. (Exhibit H, p. 5760.) As will be seen from an examination of his criminal background, Inmate F.s response to nearly all of his arrests was to proclaim his innocence and shift the blame to the true wrongdoer. Therefore, it is not surprising that despite his initial failure at informant work, he was drawn to return to a job that values deception. In 2001, he asked if he could receive consideration on another felony case by providing information about other crimes. The Garden Grove Police Department either missed or ignored the warning from the Anaheim detective and agreed. (Exhibit A8, p. 9.) In 2009 and 2010, Inmate F. found a new and even more compelling set of reasons to re-dedicate himself to informant work. In 2009, he was convicted in one of his two Third Strike cases prosecuted by Petersen. (Inmate F. was also charged in 2006 with a second Third Strike case. To date, he has not been sentenced on either of his cases.) During the trial, Inmate F. committed perjury by testifying that he had left behind his gang and the gang life several years earlier. (Exhibit A8, pp. 9-12.) In fact, he not only had remained in his street gang, but had risen to a leadership position within the Mexican Mafia. (Exhibit A8, p. 18.) At trial, Petersen did not mention Inmate F.s involvement in the Mexican Mafia, likely because Inmate F. was then a key target in an ongoing Federal RICO investigation related to his Mexican Mafia activities. (Exhibit A8, pp. 17-24.) Nonetheless, Petersen attacked Inmate F. for his dishonesty during closing argument. (Exhibit A8, pp. 9-12.) After his conviction, Petersen wrote a sentencing brief asking that Inmate F. receive 32 Recusal Motion - Dekraai
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a life sentence. (Exhibit A8, p. 12.) Because Petersen did not mention his Mexican Mafia involvement, Inmate F. believed the government was unaware of the crimes he was committing in the jail, including conspiracies to kill fellow inmates. As a result, Inmate F. unabashedly pleaded with the court to reject Petersens sentencing request, asking that the court and the probation department recognize him as a changed person who deserved a second chance. (Exhibit A8, pp. 12-17.) For Inmate F., though, his future as an inmate was growing more bleak. There were increasing signs in 2010 that his ruling mesa was being challenged and his opponents were gaining ground. (Exhibit A8, pp. 24-25.) Yet, in an ironic twist, Inmate F.s crimes and his deceitfulness saved him from life in prison while a target of the Mexican Mafia. Inmate F.s access to one of the organizations ruling factions within the jail made him a prized commodity for investigators working on Operation Black Flag and the prosecutor on the related cases, Petersen. The prosecution team also realized that Inmate F.s own predicaments would motivate him to supply a prolific quantity of information. (Exhibit A8, pp. 30-31.) Therefore, Petersen and his team decided to give Inmate F. a transformative makeover: deceptive and violent inmate to truth-telling and socially responsible informant. Fully energized, Inmate F. went to work. Special Handling deputies have acknowledged having numerous meetings with Inmate F. in the year that followed. (Exhibit A8, pp. 30-32.) However, the Court-ordered discovery included less than a handful of law enforcement reports. (Exhibit A8, p. 34.) Nonetheless, Inmate F.s efforts and the secret operations of the custodial informant program have been gradually revealed through a study of selected passages from the 133 pages of Inmate F.s handwritten notes included in the OCSDs CI file. Inmate F. elicited dozens of statements related to Mexican Mafia activities. (Exhibit A8, p. 30-34.) However, his work extended beyond that subject matter. Discovery obtained pursuant to the Court order shows that Inmate F. obtained statements from at least three different charged defendants, in addition to Dekraai, which related to murder or attempted murder allegations. (Exhibit A8, pp. 26-30, 55-59, 12833 Recusal Motion - Dekraai
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132.) The Hidden Informant Assistance Memorandum As discussed previously, Wagner wrote in his declaration in support of the prosecutions Opposition to the discovery motion that the OCDA does not anticipate nor intend to make any request or recommendation for leniency at sentencing as a result of Inmate F.s involvement in the present case and that the prosecution would give a factbased appraisal of the value of the case, but only [i]f summoned. However, in November 2011, just one month after interviewing Inmate F., OCDA Investigator Erickson sent a memorandum to Petersen expressing the OCDAs actual plans for Inmate F.s cases. The memo was certainly either penned by Wagner or sent at his direction. For reasons Wagner will have to explain, it was withheld from the defense until September 26, 2013. (Exhibit A8, pp. 107-109.) In contrast to what Wagner stated in his declaration, the memo was intended to ensure that Inmate F. would receive consideration for his valuable efforts. Erickson wrote: In summary, Inmate F. provided facts and intelligence about the events of the day of October 12, 2011, that only Dekraai could have known. Those facts and intelligence will likely greatly enhance the prosecution of Dekraai, especially in the event there is an insanity plea entered by Dekraai. Following Inmate F.s interview, a covert investigation conducted with the jail facility further established the validity of the information provided by Inmate F. Inmate F. may eventually be called as a witness in the case against Scott Dekraai. [] As the prosecutor handling Inmate F.s case, this memorandum is being directed to you for your consideration and information only. I respectfully request that you keep Inmate F.s name in [sic] information, as it relates to the Dekraai case, confidential. Nothing about Inmate F. or his statements regarding the Dekraai case have been discovered to the defense. (Exhibit J, emphasis added.) The concealment of this memo was a stunning Brady violation by a leader within the OCDA. The memo was directly inconsistent with Wagners representations in his declaration and the Opposition to the Motion to Compel Discovery. If Wagner was lying to the Court when he wrote that the OCDA does not anticipate nor intend to make any
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request or recommendation for leniency based upon Inmate F.s assistance in Dekraai, the legal and ethical implications are obvious. Assuming arguendo he was not lying, the ethical implications are equally serious and provoke numerous questions. For example, did Wagner tell Petersen to disregard the November memo and to instead withhold "consideration"? Did he give this command even though he believed "consideration" was deserved based upon Inmate F.s valuable assistance? Did he tell Petersen why he no longer wanted Inmate F. to have "consideration" for his work on Dekraai? The most obvious reason that Wagner would have withheld benefits is a terribly troubling and unethical one: he and others had already conspired in their interview of Inmate F. to hide his informant status. (Exhibit A8, pp. 90-93.) The team believed that their false presentation of Inmate F. was enhanced by suggesting he would receive nothing in return. (Exhibit A8, pp. 90-93.) Erickson reiterated that point in his report. (Exhibit A8, pp. 107-109.) Wagner wanted to be consistent on this issue in his representations to the Court. (Exhibit A8, pp. 117-120.) Wagner could tell the truthInmate F. would not be receiving a benefit from the OCDA for his assistance in Dekraaias long as he instructed Petersen to no longer follow the request that Inmate F. be given consideration in the November 2011 memo. Petersen has as many questions to answer about the memo as Wagner. For example, was Petersen told at some point after receiving the memo to give Inmate F. consideration for his work on People v. Dekraai, but not to acknowledge the connection to this case in any discussions with the court? What was his response to whatever direction came from Wagner or another member of the Dekraai prosecution team? The memo is also significant because it corroborates that shortly after their interview of Inmate F., the prosecution team began taking steps to hide his informant work in the instant matter. Toward that end, the memo instructed Petersen not to disclose to anyone Inmate F.s assistance in eliciting statements from Dekraainoting that the prosecution had not given Dekraai the evidence obtained with the assistance of Inmate F. (Exhibit A8, pp. 107-109.) 35 Recusal Motion - Dekraai
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Wagner knew that Inmate F. was working as an informant in other cases prosecuted by Petersen, and that Inmate F.s efforts with Dekraai were discoverable in those matters. Wagner knew that evidence of his own teams conspiracy to conceal Inmate F.s identity, the informants misleading statements about his motives for providing assistance, and the recordings that captured Inmate F.s talent for ingratiating targets, was unquestionably required Brady discovery in Petersens cases in which Inmate F. was an informant. (Exhibit A8, pp. 109-111.) For Wagner, though, this memos directive was entirely logical considering the risk that existed: if other defendants received discovery related to the instant matter, it was only a matter of time before Dekraais defense team would learn that Inmate F. was an informant on those cases, as well. This memo corroborated that the Dekraai prosecution team was not only fully committed to hiding Brady evidence in the instant matter, but was unconcerned that the price for keeping Brady material from Dekraai was violating the discovery rights of other defendants. Dekraai Prosecution Hides Information from Confidential Informant Files The prosecutions perspective on its Brady obligations with regard to informant matters is evidenced by additional acts of concealment pertaining to Inmate F.s confidential informant files. First, the prosecution team decided not to create an entry in Inmate F.s OCDA CI file, which should have noted his assistance in the instant matter. (Exhibit A8, p. 112.) Second, Special Handling Deputy Garcia was apparently directed by the Dekraai prosecution team to exclude from the OCSDs CI file Inmate F.s notes describing the statements elicited from Dekraai, as well as any reference to his assistance in People v. Dekraai. (Exhibit A8, p. 112.) Again, both of these steps were designed to reduce the chances that a prosecutor in another case would disclose to a defendant evidence of Inmate F.s assistance related to Dekraai, which in turn would lead to Dekraai learning about Inmate F.s additional informant work. Separate of what these acts confirm about the commitment of the Dekraai prosecution team to hiding evidence from Dekraai, they also corroborate that the team was completely indifferent to the rights of other defendants 36 Recusal Motion - Dekraai
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who were entitled to discovery on Inmate F.s informant efforts in the instant matter. Wagner Conceals Other Custodial Informant Deception and Repays Favor by Helping Conceal Petersen-Led Coincidental Contact Scam Wagner and his team have been presented with numerous opportunities to demonstrate that they will abide by their Brady obligations, and each time they have answered the challenge similarly. One particularly compelling example of the prosecutions perspective on Brady was Wagner's response to receiving information that Petersen was engaged in a coincidental contact scam designed to circumvent Massiah in People v. Inmate I. The discovery from Inmate I. was provided pursuant to this Courts order because Inmate F. is a witness in that case, as he allegedly obtained confessions from Inmate I. regarding both of his charged homicides. Inmate F.s notes confirm that he had obtained the statements from Inmate I. nearly one year after the accused was incarcerated and charged. If Wagner examined the notes in Inmate I.s case file, he would have immediately seen that Petersen planned to employ a nearly identical approach to avoiding exclusion based upon Massiah as the one he and his team were using in Dekraai. (Exhibit A8, pp. 55-62.) However, before March 29, 2013, perhaps Wagner would have been able to claim that due to the volume of the discovery he had somehow overlooked the details of Inmate I.s case. On that date, Wagner interviewed Special Handling Deputies Tunstall and Garcia. There were several objectives. One of them seemingly was to present the prosecutions version of coming clean about Special Handlings movements of inmates to facilitate questioning by Inmate F. Wagner and his team knew that even a cursory review of Inmate F.s notes by the defense would alert it to these movements. The goal of the questioning was to emphasize that orchestrated movements were limited to those involving inmates who were uncharged as part of Operation Black Flag, and therefore not subject to Massiah protections. (Exhibit A8, pp. 126-128.) Tunstalls response to one of Wagners questions, however, turned problematic:
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Q2: Okay. Um, was any other type of, uh, criminal case ever discussed that you, uh, were aware of where law enforcement was talking to Inmate F about, um, providing information concerning a criminal case that was outside of Eme politics, uh, jail beatings and assaults, or cases committed by, um--crimes committed by suspected members and associates of Eme? A: I believe in his notes theres a reference possibly to [Inmate I.], um, reference his, uh, murder case. Um Q2: And so [Inmate I.], is that--that sounds like, uh--is he a street gang member? A: Hes a Delhi street gang member. Q2: All right. A: Um, he falls under the southern Hispanics. Um Q2: Is he a Sereno? A: Hes a Sereno. Q2: So hes loyal to Eme? A: Correct. Q2: Uh A: He follows the-the rules of the Eme. Q2: Was he part of the, um, Eme leadership structure within the, um, local, um, penal institutions? A: Um, no he was not. Q2: Okay. Um, so-so youre identifying [Inmate I.] as one individual. Um, is that the only individual that youre aware of that-that, uh, Inmate F--there was a discussion with Inmate F about eliciting, um, gathering, uh, providing information, um, that was outside of the Eme politics? A: I dont recall any others offhand. There may have been, but right now Id have to review his notes, which unfortunately are lengthy. (Exhibit K, p. 22, emphasis added.) The lead prosecutor on Dekraai and the supervising attorney for the homicide unit understood the implications of what he had been tolddemonstrated by his obvious failure to ask any meaningful follow-up questions. If Wagner truly did not recognize the name Inmate I., all he needed to do was return to his office and study Inmate I.s file and Inmate F.s notes, which were included within the Court-ordered discovery. This would have quickly confirmed a likely Massiah violation in the works and Petersens shocking concealment of evidence relevant to Inmate F.s informant and criminal background. The supervising prosecutor for the OCDAs homicide division should have then taken, at a minimum, the following actions: order Petersen to disclose to Inmate I. evidence relevant 38 Recusal Motion - Dekraai
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to Inmate F.s informant and criminal background, including a copy of the recorded conversation with Tunstall that Wagner had just conducted; investigate and report to appropriate authorities if Petersen violated legal and ethical rules; and initiate an investigation to determine whether Petersen, other prosecutors, deputies from Special Handling, and members of other agencies had also attempted to purposefully violate Massiah and conceal it. He also had an obligation to Dekraai. If Wagner examined Inmate F.s notes and realized that the government had set up a fraudulent coincidental contact in Inmate I.s case, he was required to disclose it to the defense in the instant matter, rather than simply hope that Dekraais defense team would miss it. Even if Wagner, the OCDA, and the SBPD take the position that they had no role in facilitating the contact between Dekraai and Inmate F., evidence of other coordinated coincidental contacts between Inmate F. and represented murder defendants remains highly relevant to whether the Special Handling Unit orchestrated the contacts in both People v. Dekraai and People v. Inmate I. For Wagner, though, he knew that any objective investigation into Petersens actions in Inmate I.s case would lead directly back to his own teams misconduct. How could Wagner take Petersen to task when his own team had engaged in nearly identical misconduct related to Inmate F.? How could Wagner direct Petersen to turn over Brady material when he had ordered the very same prosecutor, via Ericksons memo, not to disclose Dekraai discovery in Petersens cases? How could he launch the investigation into whether the OCDA and local law enforcement were regularly violating Massiah when it would inevitably reveal that these types of violations were an open secret within his office and among local law enforcement? Wagner knew he lacked a solution that would avoid tremendous damage to this case, his office, local law enforcement, and his own reputation and career. So he crossed his fingers and did nothing. Wagner Hides From Evidence of OCDA-Directed Massiah Violations Each interview with Inmate F.s three handlers seemed to present its own unique challenge to Wagners commitment to evading his legal and ethical responsibilities. Sadly, 39 Recusal Motion - Dekraai
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each time the veteran prosecutor responded similarly. In his interview with SAPD Detective Gonzalo Gallardo, Wagner found himself confronted with information both helpful to Dekraai and relevant to whether the OCDA was directing Sixth Amendment violations within the jails. (Exhibit A8, pp. 129-131.) Wagner attempted to lock down that Gallardo never directed Inmate F. to elicit statements from a high profile murder defendant disconnected from the Mexican Mafia investigation. The answers were not what Wagner wanted to hear: Wagner: All right. Okay. Um, did you ever -- I guess to get very specific to this case, um, did you ever direct Inmate F., um, to try to gather information against, uh, like a high profile, uh, murder defendant who was not a part of -- was not connected in any way with the Mexican Mafia? Gallardo: There was times we did -- we did use informants, um, and we basically under the direction of a district attorney, we would use inmates. Wagner: Okay. Now I'm going specifically towards Inmate F. now. Gallardo: Uh, I believe we did. I think he did provide some information on -- on some murder suspects. (Exhibit L, p. 14.) Thus, according to Gallardo, custodial informantsincluding Inmate F.had obtained such statements from murder defendants "under the direction of a district attorney." Wagner was stuck. He had received information that was beyond what he asked, but information that was, nonetheless, highly relevant to this case and to systemic issues related to Massiah. The first case that must have come to Wagners mind was People v. Inmate I. It had been over a month since Tunstall had told Wagner about Inmate F.s elicitation of statements from murder defendant Inmate I. Wagner knew he had turned his back on what Tunstall disclosed. While Wagner could have confirmed with one question the name of the Deputy DA to whom Gallardo was referring, his instinct was to hide the identity of the prosecutor from future listeners to the recording, and hope they would overlook its significance. Yet, the significance was great, as Wagner knew. Gallardos answer went beyond Tunstallsindicating that a prosecutor with the OCDA had directed informants,
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including Inmate F., to elicit statements from incarcerated murder defendants. Wagner knew he had not handed over to Dekraai any discovery indicating that a prosecutor had directed Inmate F. to question a charged murder defendant. In fact, Wagner knew that the Inmate F. discovery does not include a single report documenting any direction by either a prosecutor or a member of law enforcement. Wagners response to Gallardo provides just one example of why the Dekraai prosecution team cannot be trusted, and why Dekraai will never have a fair penalty phase in this case. From Wagners perspective, Gallardos disclosure was not seen as an opportunity to learn critical information, but a reason to switch subject matters. Not a single follow-up question was asked. Wagners discomfort is apparent as he attempted to escape what he had been told. Wagner seemed unsure how to navigate away from Gallardos unwanted responses without making their significance obvious to the listener. Wagner then asked Gallardo the absurd question of whether the Santa Ana detective had directed Inmate F. to question Dekraai about the Seal Beach murders. (Exhibit A8, p. 132.) Wagner finally received the simple no he wanted and moved on. Evidence That Prosecution Team Remains Committed to Concealment Wagners reactions during the interviews of Tunstall and Gallardo demonstrate the ease with which some prosecutors scamper past evidence helpful to the defenseonly glancing back to make sure no one else has seen it. However, Wagner and his team demonstrate throughout this study that they are also willing to take more proactive steps to deceive the defense. Wagners interview with Inmate F.s primary handler, Deputy Garcia, would provide another example. Wagner interviewed Deputy Garcia on the same day as Tunstall, on March 29, 2013. Before the interview, the prosecution team provided Garcia with a list of high profile inmates and purportedly asked him to determine whether Inmate F. had any contact with them and whether he had elicited any statements. (Exhibit A8, pp. 128-129.) The investigation of this issue and the questioning of Garcia on the subject matter would turn out to be a pre-arranged fraud. 41 Recusal Motion - Dekraai
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During the recorded interview, Wagner asked Garcia to confirm that he had compared the housing locations of the listed inmates and Inmate F. and determined that none of the inmates on the list had been in contact with Inmate F. One of the inmates on the list was Inmate M., another capital defendant. During questioning, Garcia stated that Inmate F. did not have contact with any of the inmates on the list, including Inmate M., who was identified by name during this line of questioning. (Exhibit A8, p. 128.) However, a few minutes further into the interview, Garcia made a mistake. The recording suggests that Garcia forgot Wagners off-the-record directive not to acknowledge that Inmate F. had been in contact with Inmate M. and had elicited a statement. Garcia suddenly mentioned his off-the-record discussion with Wagner, during which Garcia apparently described Inmate F. eliciting a statement from Inmate M. Before the recording began, Garcia also apparently explained to Wagner that he told Inmate F. not to elicit additional statements from Inmate M. (Exhibit A8, p. 129.) When Garcia revealed this, Wagner quickly moved to another subject matter. (Exhibit A8, pp. 128-129.) There are several reasons that Wagner believed it was critical to conceal the contact between Inmate F. and Inmate M. His interview of Garcia revealed one of them. Wagners questions indicated that he hoped to assert at the anticipated Massiah motion that if the prosecution had wished to plant an informant next to Dekraai, there were better choices than Inmate F. Wagner knew this argument was already weakened by the fact that Inmate F. had elicited statements from a second capital defendant, Daniel Wozniak. The last thing Wagner wanted the defense to learn was that Inmate F. had elicited statements from yet another capital defendant prior to Dekraais arrest. Wagner probably imagined Inmate F.s uncomfortable responses as he answered questions about his motives for eliciting statements from Inmate M. Did Inmate F. seek inculpatory statements from Inmate M. because of his hatred of what the defendant had done in that case, as well? Were his efforts to obtain statements from Inmate M. simply another freebie for the prosecution for which he neither wanted nor anticipated consideration? The implications of this behavior are obvious and the damage is irreparable in this 42 Recusal Motion - Dekraai
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proceeding. As will be shown, the lead prosecutor in this case has repeatedly concealed evidence material and helpful to the defense, eviscerating any reasonable faith that he will comply with Brady obligations pertaining to issues of mitigation and aggravation. But, as with so much of the misconduct uncovered in this study, there was still more lurking beneath the surface. A review of the CI files maintained by both the OCDA and OCSD reveals that the decision to hide Inmate F.s contact with Inmate M. actually began prior to Garcias interview. During Garcias same interview with Wagner, he stated that upon receiving informant information about a crime investigated by an outside agency, he would immediately contact the investigating agency and the OCDA. (Exhibit A8, pp. 6465.) Inmate F.s OCSD CI file confirms that Garcia or another Special Handling Deputy would also place a copy of the relevant notes in the file and type a brief summary of the pertinent information. (Exhibit A8, pp. 112-113.) However, neither CI file includes any reference to Inmate F.s assistance in People v. Inmate M. (Exhibit A8, pp. 129-130.) The inexplicable absence of any mention of Inmate M. raises yet more questions relevant to both the manipulation of information pertaining to Inmate F., and to systemic issues of deception that have infested the custodial informant program. The Coincidental Contact Fraud and Evidence of a Key Prosecution Witnesss Dishonesty Independent of the Dekraai prosecution teams actions, the governments conduct in four cases involving Inmate F. delegitimizes the coincidental contact claim in this case. As will be shown, it appears that the OCDA, Special Handling, and local law enforcement were laying the groundwork to introduce statements elicited by Inmate F. from charged and represented defendants; that is, Inmate F. was not working with the expectation of a benefit and the contact between him and the targeted defendants was merely coincidental. The four matters are People v. Wozniak, People v. Inmate I. and People v. Inmate S., and People v. Inmate M. A Test Case for Inmate F. The first two entries in the OCSDs CI file are dated June 14, 2010, (Exhibit M, p. 43 Recusal Motion - Dekraai
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5133.) On that date, a Special Handling Deputy documented receipt of list of Gang monikers/Roster and a biography of Inmate F.s life. (Exhibit M, p. 5132.) He wrote near the end of the biography that Deputy Grover gave me a work assignment and here I am. I want to know the next stop. (Exhibit M, p. 5145.) The housing records reveal that on June 16, 2010, Deputy Garcia moved Inmate F. out of disciplinary isolation and into Mod J. (Exhibit A8, p. 26.) According to Garcias interview, Daniel Wozniak arrived in Mod J on June 17, 2010, only one day after Inmate F. had been relocated to that unit. (Exhibit A8, p. 26, emphasis added.) As referenced in the Summary of Motion and Findings, Wozniak is also represented by me, and he is also being prosecuted for capital murder. (Exhibit A8, pp. 26-27.) Inmate F. elicited statements from Wozniak and Dekraai 15 months apart. If one were inclined to believe Garcia, Inmate F.s efforts in both instances were merely coincidental and unprompted by the OCSD, the OCDA, or local law enforcement. However, this motion will show that Special Handling, the OCDA, and local law enforcement have habitually engaged in deception when the subject turns to how informants and represented defendants find themselves in communication. This pattern of deception is alone sufficient to find that Special Handling orchestrated the meeting between Inmate F. and Wozniak. But a cascade of other facts also supports this finding. Inmate F.s CI file created by the OCSD offers important insights about Inmate F.s first assignment after June 14, 2010. The only contact that Inmate F. documented with another inmate during the following three weeksafter providing deputies with his biography, the roster, and request for clarification of his assignmentwas his contact with Wozniak. (Exhibit A8, pp. 26-27.) The next entry in Inmate F.s CI File is dated July 1, 2010, which is also the date of the first notes he wrote describing the statements of any fellow inmate. On that date, Inmate F. turned over two pages of notes documenting an alleged confession by Wozniak. (Exhibit A8, pp. 26-27.) Why did Inmate F. write notes about his discussions with an inmate, rather than just share them verbally? Garcia answered that question during his interview on March 29, 2013: 44 Recusal Motion - Dekraai
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Wagner: Okay. Uh, besides contacting the D.A.s office about, uh, Inmates--Inmate Fs report that [Wozniak] was talking, um, do you recall having a conversation with Inmate F about [Wozniak]? Garcia: Not-not in detail. I have him write it all down, and Id rather him talk to the D.A. I-I didnt--I dont like it to go through me and then through the D.A. I want them to hear it firsthand. The reason I make him write it down is for, one, so they dont forget what they just heard, um, but I dont get into detail on that or trying to add to that or anything else. I-I like to keep it clear to him that, um, This is what you heard. If they come and talk to you, just share that with them. (Exhibit EE, p. 30.) This response confirms that before Inmate F. wrote his notes about his contact with Wozniak, Garcia trained him to document statements from targets in writing. Nonetheless, Garcia and Special Handling were apparently shocked to learn that Inmate F. then used that training to document his conversations with a high profile defendant charged with special circumstances murder, rather than waiting for an actual assignment from Special Handling. Seemingly, this unauthorized action would have ended Inmate F.s chances of working for the government. Quite the opposite. Inmate F.s rogue effort actually locked him into full-time employment. Why? It turned out that Special Handling was coincidentally hoping that Inmate F. would generate some proof that he could be trusted. Garcia told Wagner the following: So Operation Black Flag--so I brought over, um--I believe at the time it was Seth Tunstall, um, uh, Gonzo [phonetic spelling], a lot of the guys from Santa Ana came over and sat down, talked to him, and we kinda feeled him out to see if in fact he wasnt playing both sides, if he was true to this ... (Exhibit EE, p. 7.) Garcia later added: Yeah, look--they were there--yeah, I compared to when they were moved into that housing unit and when I received that, and it was a couple weeks. So it took a while for them to build a rapport. It wasnt that he went in there and just, you know, threw it all out to him. He had to build a rapport with this guy, and I think that was one of the first things he really gave us showing that, Hey, you know, Im gonna tell you what people tell me, and share this with you. (Exhibit EE, p. 31.) 45 Recusal Motion - Dekraai
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In essence, Garcia would have it be believed that although Special Handling never created a test to determine the quality of Inmate F.s informant skills and his fidelity to law enforcement, he still passed it with flying colors. Garcias response to Wagners question had another interesting element. He said that it took time for Inmate F. to ingratiate himself with Wozniak, noting that it took a while for them to build a rapport. (Exhibit EE, p. 31.) However, in his notes, Inmate F. never wrote anything about needing to build a rapport with Wozniak. (Exhibit A8, pp. 2728.) How did Garcia know that Wozniak did not simply offer incriminating statements in response to the first question? The reason, of course, is that Garcias analysis was not the product of clever skills of deduction based upon his study of the file, as he had suggested. Special Handling had not left its new informant alone in the weeks immediately preceding their discussions with him about his work assignment. They were meeting with him regularly and encouraging his work. Garcia was not speculating when he told Wagner that it took some time for Inmate F. to build a rapport with Wozniak. Rather, he was describing what Inmate F. told him. (Exhibit A8, pp. 26-28.) Garcia then hid evidence of these conversations with Inmate F. to prevent exposing Special Handlings efforts to seek information from represented defendants in willful defiance of Massiah. And, as will be shown throughout this motion, the concealment of evidence damaging to the prosecutions goals was the rule, not the exception. In sum, the following factswithout consideration of the prosecutions practice of concealing Massiah violationsdemonstrate the governments active role in eliciting statements from Wozniak: 1) Inmate F. received an unidentified work assignment in June; 2) Before bringing Inmate F. into Operation Black Flag, Special Handling needed to determine whether Inmate F. could establish a relationship with a target and then be relied upon to document what was said; 3) There was a one day period separating the arrival of Wozniak and Inmate F. in the same unit; 4) Inmate F. did not document notes about conversations with any other inmate during the three week period following the unidentified assignment; and 5) Inmate F. wrote notes to Special Handling documenting 46 Recusal Motion - Dekraai
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Wozniaks confession on July 1, 2010 and July 8, 2010. (Exhibit A8, pp. 26-28.) Costa Mesa Police Departments Interview of Wozniak and its Report: A Hint of the Concealment to Come As indicated in the Summary of Motion and Findings, two issues explored in the Motion to Dismiss are when the Dekraai prosecution team knew Inmate F. was an informant, and when the decision to cover up that knowledge began. In analyzing the prosecution teams misconduct and whether it was demonstrative of a trained policy for the use of custodial informants, it is worth considering how another local prosecution team managed its contact with Inmate F. As will be discussed, the Dekraai prosecution teams interview of Inmate F. was conducted by OCDA Investigator Erickson and described in his subsequent report. That interview and report purposefully concealed the Dekraai prosecution teams knowledge that Inmate F.s was an informant. (Exhibit A8, pp. 113-114.) What did the interview and report by Costa Mesa Police Department ("CMPD") Detective Jose Morales indicate about his knowledge of Inmate F.s background as an informant and his relationship with Special Handling? Detective Morales report, which he did not write for nearly one year, does not give any hint that he had even spoken with a member Special Handling in advance of the interview about Inmate F. Nor does it indicate that Morales was aware of Inmate F.s developing role as an informant. (Exhibit A8, pp. 28-29.) While Ericksons report about the Dekraai investigation and his interview with Inmate F. acknowledged the contact with Garcia, neither Ericksons report nor the recorded interview hinted at the significance of Garcias role. In addition, neither the Dekraai teams interview of Inmate F. nor the subsequent report revealed that they had any knowledge that Inmate F. was a government informant (for the previous 15 months.) (Exhibit A8, pp. 113-114, 120-121.) While both reports and recorded interviews fail to mention any knowledge of Inmate F.s informant status, one of the reasons that neither the Wozniak prosecution team nor the Dekraai prosecution team can credibly claim they were unaware of Inmate F.s status as an informant is a matter of common sense. These homicide prosecution teams 47 Recusal Motion - Dekraai
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would not have permitted a witness from the jail to become entangled in their capital prosecutions without first learning the inmates informant history and the potential motivations for providing assistance. Nonetheless, it would take three years before a government official finally acknowledged Moraless contact with Garcia prior to the Inmate F. interview in People v. Wozniak. During Wagners 2013 interview with Garcia, the following dialogue took place: Q2: Do you recall, um, having to make any contacts as a result of notes that Inmate F wrote concerning [Wozniak]? A: I-I believe I contacted the D.A. behind that one, too. Q2: All right. A: Yeah. Q2: So-so just saying, um--kind of the same contact you made with us concerning A: Absolutely. Q2: Scott Dekraai, just that, Hey, you may want to know that it sounds like [Wozniak] is talking, and youve got somebody whos a cooperating individual who reports having a conversation? A: That is correct. (Exhibit EE, p. 29.) Additionally. a Special Handling summary that precedes Inmate F.s notes in his OCSD CI file pertaining to Inmate F.s contact with Wozniak states that [Inmate F.] documents the conversation and forwards it to Special Handling. The original copies were sent to Detective Morales from Costa Mesa P.D. (Exhibit M, p. 5147.) Although the prosecutor on Wozniaks case has indicated he does not intend to call Inmate F. as a witness, it remains mysterious why Morales waited so long to write a report about a seemingly important interview and why his instinct after the delay was to continue to hide Inmate F.s informant status (and the detectives communication with Special Handling.) (Exhibit A.) The most logical explanation why Morales failed to be transparent about his knowledge of Inmate F.s informant status is that he realized the statements from Wozniak had been obtained in violation of Massiah and that his questioning of Inmate F. and the subsequent receipt of additional notes where further violations of Massiahthe identical
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reason that the head of the same homicide unit prosecuting Wozniak led the concealment of Inmate F.s informant status in People v. Dekraai. More Lessons from Inmate F.s Contact with Wozniak: The Truth About Inmate F.s Motivations When the Dekraai prosecution team met with Inmate F., they believed they would be able to successfully hide Inmate F.s informant background by aiding him and presenting a motive for his assistance that, at the very least, was not completely candid. However, fifteen months earlier, before Inmate F. was far more schooled in the informant handbook, Inmate F. was considerably more careless with expressing his true motivations for his work. Inmate F. had expressed his most powerful motivation for providing assistance in his first letter to law enforcement, dated July 1, 2010: Padilla & Garcia, Grover & Paraja. I extend all mines. I am just looking to change my life and get back to my kids I will do what it takes to get there. Just to inform you my DA is Gang DA Eric Peterson [sic.] & my lawyer is Richard Curran (714) 8**-**** (Exhibit M, p. 5149, emphasis added.) Interestingly, when he was interviewed one week later by Morales on July 8, 2010, Inmate F. showed that he could express contempt for a targets conduct and still be motivated by hope for consideration on his cases. As he would when speaking about his feelings toward Dekraai, Inmate F. expressed enmity toward Wozniak when speaking to Morales, calling Wozniak a creep. (Exhibit LLLLLLL, p. 9.) But toward the end of the interview, he articulated perfectly why he would bring desperation to his everyday informant efforts for the government: I just want to get back home with my kids and Ill do whatever it takes to get there (Exhibit LLLLLLL, p. 14.) Interestingly, as soon as the interview terminated, it appears that Inmate F. immediately renewed his efforts to obtain additional information from Wozniak. Inmate F. created a new set of notes that were dated July 8, 2010the same day as the CMPD interview. In those notes, Inmate F. memorialized additional statements about the crime and the culpability of a third party. (Exhibit A8, pp. 29-30.) Questioning at the hearing
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will show how the OCSD helped to facilitate this second round of questioning of Wozniak, just as the OCSD would facilitate Inmate F.s questioning of Dekraai more than one year later. Inmate I. and Inmate S. Inmate I. and Inmate S. are Delhi street gang members. As referenced above, Inmate I. is currently awaiting trial in two cold case gang murders that Petersen is prosecuting. Inmate S. is charged with two counts of attempted murder for the benefit of his gang. He was found incompetent to stand trial in 2011, and proceedings are currently suspended. (Exhibit A8, pp. 65-66.) Inmate F. elicited multiple statements about the charged crimes from both defendants. If Inmate F. decided to elicit statements from these two defendants while trolling the jails for confessions, it would have given rise to a Massiah violation. But is that what occurred? Was he on his own without any assistance or guidance from the government? The hidden truth is that the prosecution teams in both of these cases were suppressing evidence and manipulating the contents of investigative documents in order to mislead the defense. These actions mirrored those by the Dekraai prosecution team, which also sought to avoid a Massiah violation through similarly deceptive methods. As will become increasingly apparent, these methods allow prosecution teams to repeatedly make the same coincidental contact argument with a straight face. And the plan was working perfectly until this Courts discovery order on January 25, 2013. People v. Inmate I.: The Mirror Image of People v. Dekraai Among the cases discussed, People v. I. is perhaps the most instructive in examining and understanding Inmate F.s contact with Dekraai, the custodial informant program operational procedures, and the actions of prosecutors and officers that manage and utilize that program. The discovery provided to Inmate I.s counsel was provided pursuant to this Courts order because of Inmate F.s role as an informant in the case. The unique feature of this case was that it rests almost entirely on the anticipated testimony of both Inmate F. and Oscar Moriel. And as with the prosecution team in People v. Dekraai, the Inmate I. 50 Recusal Motion - Dekraai
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prosecution had also been quite lucky with informants. A defendant suspected and then charged with two murders would purportedly find himself in coincidental contact with two of the custodial informant programs most valued informants. Inmate I.s Contact with Oscar Moriel For a number of years, the 2005 murder of Alberto Gutierrez and the 2006 murder of Randy Adame seemed destined to remain unsolved. However, in 2010, Oscar Moriel disclosed to law enforcement that he had obtained confessions from Inmate I. one day after his arrest on an unrelated case. (Exhibit A8, p. 35-37.) His role appears so critical that the prosecution will seemingly have insufficient evidence to succeed at Inmate I.'s trialonce the statements to Inmate F. are excluded pursuant to Massiahunless Petersen introduces the statements obtained by Moriel. As has been his practice in other informant cases, Petersen concealed numerous relevant notes written by Moriel. A considerable quantity of suppressed notes included those documenting a coordinated and secret effort on the part of Moriel, the SAPD, and the OCSDs Special Handling division to manipulate housing locations in order to allow Moriel to obtain confessions from Inmate I. and many other inmates. (Exhibit A8, pp. 4251.) Those notes were not hidden to prevent a Massiah motion involving Moriel in People v. Inmate I., because the confession to Moriel was obtained prior to when Inmate I. was charged. Instead, the notes were concealed primarily to prevent revelations of past misconduct related to the custodial informant program. (Exhibit A8, pp. 38-54.) As discussed in footnote 8, it appears that Petersen and Wagner had been waiting to determine whether the Dekraai defense team would uncover the OCDAs concealment of discovery in People v. Inmate I. With the announcement of an imminent 500 page Motion to Dismiss by counsel for Dekraai, Petersen told Inmate Is counsel five days later that he would turn over 12,000 pages of discovery. (Exhibit A8, p. 62.) The key to recognizing the concealment of the OCDA in People v. Inmate I, as in many of the cases discussed here, is the discovery found within People v. Inmate E. The 196 pages of Moriels notes found within that discovery file are perhaps the most 51 Recusal Motion - Dekraai
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important source for understanding the practices of deception and concealment that envelop the custodial informant program. (Exhibit A8, pp. 146-147.) Among the most important of Moriels notes hidden from Inmate I., and found within the Inmate E. discovery, are those describing the previously discussed Dis-iso scam. Again, this term refers to Special Handlings effort to place an informant and his target in a disciplinary isolation module together so that the target will be less suspicious that the inmate is actually an informant; the theory is that an inmate working for the government would be unlikely to commit serious rules violations and even less likely to face severe punishment for such a violation. In a note dated August 1, 2009, Moriel reflected upon the Dis-iso scam successfully employed with Special Handling and SAPD detectives against Leonel Vega, and wrote about using the same scam against Inmate I. This note was written August 1, 2009, and is found in People v. Inmate E., but was not discovered to either of the targets of the scam: Vega and Inmate I. By hiding this note in People v. Vegaand engaging in a vast array of other misconductPetersen was able to avoid a Massiah challenge to Moriels testimony. (Exhibit A8, pp. 45-50.) The numerous instances of misconduct in that case and the revelations that emerged about the custodial informant program are discussed at length in the attached declaration and the Motion to Dismiss. The government was unable to carry out the Dis-iso scam on Inmate I. in August of 2009, as he apparently had been released from custody before the plan could be put into action. However, one day after Inmate I.s arrest on another case the following year, he was moved into a cell near Moriel. In a note that appears to be dated May 20, 2010a hole punch pierces the digit for the monthMoriel wrote that he obtained a confession the very same day that Inmate I. arrived next to him. (Exhibit A8, pp. 48-50.) That note, though, included what was apparently troublesome language for the prosecution. Moriel wrote that [he] just got here a few hours ago and landed in cell 1. (Exhibit O, p. 2399, emphasis added.) His words apparently revealed far too clearly that Inmate I.s arrival was not unexpected. (Although the coordinated movements did not 52 Recusal Motion - Dekraai
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have Massiah implications, prosecution teams have remained equally committed to misleadingly presenting contacts between inmates and informants as coincidental, whether or not there are Sixth Amendment implications.) The prosecution team was also likely bothered by Moriels language suggesting that he may have been leading Inmate I. toward a false confession. As a result, it appears that Petersen and his team simply decided to make that note disappear from sightwhere it would have stayed forever hidden, but for this Courts ruling and the existence of the more complete discovery in the Inmate E. file. Attorney Pohlson recently confirmed that the first note was never provided. (Exhibit A8, pp. 49-50, 61.) On the day of the preliminary hearing, Petersen instead discovered a different note to defense counsel, dated May 24, 2010, which was dated four days later and also had a confession to both murders. (Exhibit A8, p. 43.) Rondou, who interviewed Moriel about the statements, but did not record the questioning, falsely testified that the only note he was aware of was the second one, dated May 24, 2010. (Exhibit A8, pp. 42-43.) He also claimed that after receiving that note and then conducting the interview, a recording device was placed within the cell of Moriel. This appears to be untrue, as well. (Exhibit A8, pp. 50-51.) An analysis of the notes and the actual recording indicate instead that the recording device was either in Moriels cell before Inmate I. landed or earlier. (Exhibit A8, pp. 51-53.) But as this would have rebutted the presentation of coincidental contact, the prosecution team simply changed the facts to support a presentation more to their liking. At the preliminary hearing, Rondou claimed that he lacked any insights into the timing of the investigation. He testified that not only did he not record the interview with Moriel, but also never wrote a report about that interview or apparently about his review of the recorded conversation that he said he listened to before testifying. Therefore, Rondou said he could not say the exact date that he interviewed Inmate I., nor provide the date that recordings in the jail occurred. (Exhibit A8, pp. 52-54.) The deception did not end there. The prosecution team also hid evidence that another member of the Delhi gang admitted to Moriel that henot Inmate I.was 53 Recusal Motion - Dekraai
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responsible for one of the murders. Petersen never has turned over notes to Inmate I. found in the Inmate E. discovery, describing Joseph Galarzas confession to two other fellow Delhi gang members that he was the shooter in the Adame murder. (Exhibit A8, pp. 40-41.) Galarza was killed by a Santa Ana Police Department officer in April of 2009. In notes dated February 1, 2010, Moriel wrote that Alvaro Sanchez and Trujillo (known as Vicious) told him that Galarza admitted to the Adame murder. (Exhibit A8, pp. 40-41.) The Use of Inmate F. as an Informant in People v. Inmate I. In March 21, 2011, Inmate I. appeared in court on charges that he murdered Alberto Gutierrez. Four days later, on March 25, 2011, an amended felony complaint was filed adding the murder of Randy Adame. On April 15, 2011, Inmate I. appeared and entered a plea of not guilty. Six days later. Inmate F. documented having received a confession from Inmate I. 10 On May 3, 2011, Inmate F. detailed a second statement about the charged crimes. (Exhibit A8, pp. 55-58.) What precipitated this contact? Of course, there are no reports from law enforcement, either Special Handling or SAPD, that give any insights about their conversations with Inmate F. pertaining to this effort, even though Inmate F. made contact with Inmate I. several times about the crime. (Exhibit A8, pp. 55-59.) As in the instant matter, the prosecution was poised to argue that it was another instance of coincidental contact and that Inmate F. neither wanted nor expected a benefit. (Exhibit A8, pp. 73-75, 78-79, 89-93.) And just as in People v. Dekraai, the Inmate I. prosecution team turned over a limited quantity of notes and none of the discovery ordered by this Court on January 25, 2013. This still begs the question of who directed Inmate F. to elicit statements from
The Motion to Dismiss indicates that there was a year delay between the filing of charges against Inmate I. and the elicitation of statements. This was an error. Rather, there was nearly a year separating the elicitation of incriminating statements from Inmate I. by Moriel and Inmate F. 54 Recusal Motion - Dekraai
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Inmate I. That Inmate F. was given the specific task of obtaining incriminating statements about the two murders is corroborated by language that begins his second note, from May 3, 2011, describing the confessions to the murders with I believe my Mission is done He went on to describe what he was specifically told about the charged crimes. (Exhibit A, p. 125.) Interestingly, Inmate F. was apparently told subsequently he was incorrect and that his mission was not done. Although Inmate F. said that Inmate I. told him that he committed the murders, the prosecution team was undoubtedly looking for more specific details. On May 21, 2011, Inmate F. wrote another note regarding what appeared to be the Gutierrez murder: Today, as I was speaking to Inmate [I.] (Slim Delhi) he specifically told me that one of the murders that he committed was during mid day around 12-2:00 p.m. He specifically told me he was a bit worried cuz he left a shot-gun shell (1) and didnt know if it was retrieved & if his DNA will be on it. He also told me that he was trippin on a wire tape between him & Scar Delhi talking about the murder. (Exhibit KK, p. 5449.) Inmate F. had written notes on May 4, 2011 and May 9, 2011 that documented Inmate I.s discussions about other crimes that he allegedly committed. (Exhibit KK, pp. 5444-5447.) However, those discussions did not touch upon the charged murders. The information contained in the note dated May 21, 2011 appears to be have been sought in response to the detectives request to obtain additional specifics, such as the time of the crime and the weapon used. Inmate F. actually underlined the word shot-gun twice, which was the type of weapon allegedly used in the Gutierrez murder, and which investigators had likely told Inmate F. in advance of this round of questioning. But were the SAPD detectives giving this direction on their own? Detective Gallardo stated that law enforcement under the direction of a district attorney had been directing Inmate F. in eliciting statements:
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Wagner: All right. Okay. Um, did you ever -- I guess to get very specific to this case, um, did you ever direct Inmate F., um, to try to gather information against, uh, like a high profile, uh, murder defendant who was not a part of -- was not connected in any way with the Mexican Mafia? Gallardo: There was times we did -- we did use informants, um, and we basically under the direction of a district attorney, we would use inmates. Wagner: Okay. Now I'm going specifically towards Inmate F. now. Gallardo: Uh, I believe we did. I think he did provide some information on -- on some murder suspects. (Exhibit L, p. 14.) Again, Wagners pressing interest when told that a district attorney was directing the likely effort to violate Massiah was to not find out the name of the prosecutorat least not on tape. And while the most obvious of questions was never asked when the recording device was activated, the most likely prosecutor to have been directing Inmate F.face-toface or using a detective as an intermediarywas Petersen. If indeed Petersen was at the helm, it would be troubling for several reasons, including that he would have been intentionally leading an effort to violate Massiah. But the concerns do not end there. According to a report written by Garcia on or about March 12, 2011, Vega told Inmate F. that he planned to harm Petersen because he had done [him] dirty at trial and that he intended to enlist the help of another Delhi gang member. (Exhibit M, p. 5490.) The possibility that Petersen directed Inmate F. to unlawfully obtain statements from a Delhi gang member on the heels of receiving a threat from another member of the same gang is alarmingparticularly considering the distinct likelihood that this potential conflict of interest was never shared with opposing counsel in any of the Delhi cases that he has prosecuted since March of 2011. However, for purposes of this motion and the Motion to Dismiss, the issue in People v. Inmate I. that has the greatest relevance is how the prosecution planned to introduce Inmate I.s confession to Inmate F. despite what was seemingly an obvious Massiah violation. The Inmate I. prosecution teams plan was simple, already proven effective in People v. Vega, and nearly identical to the plan used by the Dekraai prosecution team:
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conceal the discovery relevant to Inmate F.s informant background, criminal background, and true motives for providing assistance. A comparison of the state of discovery in both cases prior to this Court's January 25 discovery order shows that Petersen took the identical tact that was used by the Dekraai prosecution team. Petersen hid the OCSD and OCDAs CI files on Inmate F., with the exception of a small quantity of notes; both of Inmate F.s informant agreements with the SAPD and with the federal government; and all information related to Inmate F.s criminal background, including evidence that he committed perjury at the trial that Petersen prosecuted. (Exhibit A8, pp. 122-123.) Finally, Petersen and his team, which includes the OCSD and SAPD, hid one other critical piece of information: compelling evidence that Special Handling moved Inmate I. near Inmate F. so that he could elicit incriminating statements, including but not limited to Moriels note from August 1, 2009, that showed he was targeted by OCSD and the SAPD for a coincidental contact scam. (Exhibit A8, pp. 42-50.) Petersen Unintentionally Admits Significant Discovery Violation and Implicates Dekraai Prosecution Team Cover Up in the Process In discussing Petersens unusual disinterest in moving the case toward trial, the Motion to Dismiss states, The most logical explanation for the continuances [in People v. Inmate I.] since this Courts discovery order is that both he [Petersen] and Wagner wanted to wait to see if the Dekraai defense team would find the significant discovery violations documented herein. (Motion to Dismiss, footnote 7, emphasis added) It now appears that was precisely the plan of the two prosecutors. Inmate I.s attorney, Gary Pohlson, recently told Sanders that he had made several requests of Petersen during the previous year for additional discovery related to Inmate F. and Moriel, and that Petersen responded repeatedly by stating that he wanted to give a lump sum of discovery versus smaller, incomplete amounts. (Exhibit A8, p.) Among Pohlsons efforts to obtain relevant materials was an informal written request for additional discovery related to Moriel and Inmate F., made on September 17, 2013, which is attached herein (and redacted) as Exhibit A9. Of course, Brady discovery is mandated even in the 57 Recusal Motion - Dekraai
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absence of a request. On January 16, 2014, Dekraai filed a Motion to Continue the pre-trial, which identified that three motions would be filed: a Motion to Dismiss, a Motion to Recuse and a Motion to Exclude Statements. (Defendants Motion to Continue with attached declaration, filed Jan. 16, 2014, People v. Dekraai (Super. Ct. Orange County, No. 12ZF0128), attached herein as Exhibit A14.) On January 17, 2014, Sanders announced at a pre-trial hearing in this case that he would be filing a 500 page Motion to Dismiss, with approximately 20,000 pages of exhibits. Sanders also stated that he would be filing three motions and specifically identified a Motion to Dismiss the death penalty and a Motion to Recuse the OCDA. However, he did not mention at the hearing the third motion, which would seek to exclude statements pursuant to Massiah. (Transcript of pre-trial hearing, Jan. 17, 2014, People v. Dekraai (Super. Ct. Orange County, No. 12ZF0128), attached herein as Exhibit A15.) Four days later, on January 21, 2014, Pohlson and Petersen appeared on Inmate I.s case in front of the Honorable Patrick Donahue. Petersen announced almost immediately the following: Mr. Petersen: Just so the courts aware, the informants on this case -- one of the informants is the same informant thats on the Seal Beach salon homicide. Theres a motion thats being run by the Public Defenders Office as to that informant. Those issues would be the exact same issues that are viable to this case. And based on that, were about to turn over somewhere between 10,000 and 12,000 pages of discovery to Mr. Pohlson. (Transcript of pre-trial hearing in People v. Inmate I., Jan. 21, 2014, (Super. Ct. Orange County, No. 11CF****), attached herein as Exhibit A16, p. 1, emphasis added.) Petersens statement confirmed the suspicions of Dekraais counsel that Petersen and Wagner had decided that they would only provide further discovery to Inmate I. relating to the informants in that case, only if they believed that the Dekraai defense team had figured out their concealment. Petersen knew that a motion was being run by the Public Defenders Office as to that informant. But when did he learn this and who told
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him? Even if he was in the courtroom at the time of the Motion to Continue in Dekraai and he almost certainly was notSanders announcement did not mention the Motion to Exclude based upon Massiah. Again, neither Sanders statements in court, the written Motion to Continue, nor any statement made prior to the filing of the Motion to Dismiss referenced Inmate I. or that the two cases shared the exact same issues regarding Inmate F. Between January 16, 2014, the filing of the Motion to Continue, and January 21, 2014, Petersen and the Dekraai prosecution team, which almost certainly included Wagner, logically had discussions about the defense motions in this case. (Exhibit A14.) They apparently concluded the imminent motions were highly likely to make reference to the lack of the informant discovery in Inmate I. This is because Petersen and Wagner knew that Dekraais counsel had received a copy of the Inmate I. discovery pursuant to the January 25 order and would have seen that it consisted of merely 18 pages related to Inmate F., rather than the 10,000 to 12,000 pages to which he was entitled. (Exhibit A16, p. 1, emphasis added; Exhibit KK, pp. 4811-4828.) As discussed earlier, Wagner was well aware of what was transpiring with Inmate I. Tunstall spoke to Wagner in his March 29, 2013 interview about Inmate I. as a murder case in which Inmate F. had elicited statements, and Gallardo told Wagner in his May 13, 2013 interview that a district attorney had directed an effort to have Inmate F. elicit statements from murder defendants. Wagner would have had little doubt that at least one district attorney who was involved with this practice was Petersen. Correctly calculating the odds that defense would discuss the failure of discovery in Inmate I., Petersen and Wagner decided their best course of action was to turn over additional evidencealbeit two and one half years after Inmate F. had elicited the statements form Inmate I. However, Petersen revealed far more than what was intended in his false effort to appear forthright. He stated that, Those issues [in Dekraai] would be the exact same issues that are viable to this case. And based upon that, were about to turn over 59 Recusal Motion - Dekraai
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something between 10,000 and 12,000 pages of discovery to Mr. Pohlson. (Exhibit A16, p. 1, emphasis added.) Petersen inadvertently acknowledged that he had committed a serious discovery violation by failing to turn over additional informant evidence in Inmate I.s case that he knew related to viable issues in the case. The even greater problem for Petersen is that unfiled and unread motions in Dekraai could not have enlightened him to his responsibility to turn over evidence. Rather, the concerns about what would be contained in those motions finally created enough concern for him to turn over the discovery he had hidden. Again, the obligation to turn over materials related to Inmate F. in People v. Inmate I. was mandated because there was a viable issue of admissibility based upon Massiah. That obligation was wholly independent of whether the same viable issues existed in Dekraai. There is simply no legal or ethical justification for basing discovery decisions in People v. Inmate I. on motions filed in People v. Dekraai and their anticipated allegations. Considering what is detailed throughout the Declaration and the Motion to Dismiss, it can be concluded with relative certainty that Petersen has engaged in a similar brand of analysis throughout his career to the detriment of a vast number of criminal defendants. The truth is that Petersen held back Brady evidence for more than two years and would have never disclosed it, but for the developments in this case. It is also true that Wagner and his team helped suppress that evidence, were well aware of Petersens misconduct in Inmate I., and did nothing because of the potential impact on the Dekraai prosecution team and this case. The insurmountable challenge for Wagner is to explain how he and his team are disconnected from this discovery fraud. Again the logical questions that result are numerous. For instance, what were the conversations Wagner had with Petersen after the filing of the Motion to Continue in Dekraai and the announcement of motions in January of 2014? Had Wagner given Petersen the relevant Dekraai discovery before that date? When? If so, did he know that Petersen he had not turned it over to Inmate I.? If Wagner told Petersen it was acceptable to delay discovery, what were the reasons? Why did both 60 Recusal Motion - Dekraai
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attorneys feel it was acceptable to deprive Inmate I. of Brady discovery, and to allow Inmate I. to repeatedly waive his right to a speedy trial when he was entitled to know that his statements to one of the critical witnesses for the prosecution, Inmate F., should be excluded? Moreover, separate of the most recent issues, Wagner and Petersen should be compelled to explain what led them to coincidentally hide nearly identical evidence of Inmate F.s informant history under the same pretense that it was irrelevant to a Massiah analysis. Special Handlings Independent and Joint Effort to Violate Massiah Prior to People v. Dekraai: Coordinated Jail Movements and Hidden Direction Inmate F. repeatedly proved himself capable of juggling numerous informant tasks at the same time. Notes from Inmate F.s OCSD CI file reflect that while eliciting incriminating statements from Inmate I., he was also focused on another Delhi gang member, Inmate S. (Exhibit A8, pp. 62-69.) The Court-ordered materials do not include the set of the discovery turned over to the defendant in People v. Inmate S., whereas the set of discovery from People v. Inmate I. was provided. Because this Court's order required the prosecution to provide discovery in all cases in which Inmate F. provided information, and because the prosecution did not disclose Inmate S.'s case discovery to Dekraai, it would appear that the prosecution has withheld Inmate F. discovery from Inmate S. The effort to secrete evidence obtained from Inmate S. by Inmate F. required a multi-agency cover upsimilar to the one in the instant matterdedicated to obtaining the full benefits of an undetected Massiah violation. (Exhibit A8, pp. 65-72.) Furthermore, the prosecutions suppression of the informant evidence in People v. Inmate S., and several others cases discussed herein, demonstrates that incarcerated defendants are frequently left without even a hint of the Massiah violations committed in their own cases. The contents of Inmate F.s notes related to Inmate S., and a single report written by Deputy Garcia, have critical implications for the instant motion and the Motion to Exclude Dekraai's statements to Inmate F. (Exhibit A8, pp. 67-72.) During an interview conducted 61 Recusal Motion - Dekraai
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with Wagner in March of 2013, Garcias answers strongly implied that he did not work with Inmate F. to perpetuate Massiah violations. He also stated that when informants supplied notes or information related to an investigation by a police department other than the OCSD, his role was limited to merely sharing the evidence with that agency. (Exhibit A8, p. 65.) These responses were designed to mislead those not associated with the OCDA or local law enforcement about the extent of his role in directing informant contact with targets. The truth is that Garcia worked both in coordination with outside agencies to facilitate contact with informants, and independently when he believed the agency would view informant assistance as helpful. In furtherance of Special Handlings objective of independently assisting the SAPD on Inmate S.'s case, Garcia facilitated contact between Inmate S. and Inmate F. in late August of 2011intentionally violating Massiah. A study of Inmate F.s notes show that Garcia and his informant hatched a plan for Inmate F. to elicit statements from Inmate S. in order to help prove the defendant was competent to stand trial. After Inmate F. completed his work, Garcia carefully crafted a report to [a]ssist outside agency, the SAPD. (Exhibit KK, p. 5476.) The report and the attached note were designed to mislead by omission, in order to avoid the defendants recognition of a Massiah violation. Garcia only attached a single page of Inmate F.s notes, knowing that other hidden pages would have revealed Inmate F.s relationship with law enforcement, additional incriminating statements he had already elicited from Inmate S., and Inmate F.s communication with Special Handling about Inmate S.s competency issues prior to the contact described in the report. (Exhibit A8, pp. 63-72.) Significantly, Garcias intentionally misleading report was written less than two months before the supposed coincidental contact between Inmate F. and Dekraai. Thus, the deceptive report and hidden notes are highly relevant to a number of issues, including the truthfulness of Garcias contention in his interview with Wagner that he did not independently bring Inmate F. and Dekraai together, nor give Inmate F. direction to contact particular inmates. (Exhibit A8, pp. 69-72.) 62 Recusal Motion - Dekraai
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Furthermore, a review of the entire discovery confirms that Garcia was the Special Handling Deputy most consistently involved in moving inmates so that Inmate F. and Moriel could elicit statements in violation of Massiah. (Exhibit A8, pp. 67-69.) It also appears that Garcia, in full recognition of his role in violating Massiah and misrepresenting informant contacts, has never documented these movements in any reportsunless the OCDA subsequently concealed those reports from Dekraai and all other defendants referenced in this motion. Unraveling the Web of Misconduct Related to Inmate F. With regard to the misconduct committed in this case, the motivations for the concealment are now clear. First, the prosecution realized that if they had complied with their discovery obligations prior to this Court's order, the defense would have learned that Inmate F. was a highly valued and productive jail informant, not someone offering his cooperation altruistically. The prosecution appreciated that if the defense presented the hidden information, this Court would be far less likely to believe that Inmate F. and Dekraais jail contact was coincidental. Second, and relatedly, the prosecution recognized that their chances of introducing Dekraais statements and avoiding a successful Massiah motion would improve significantly if they could hide and manipulate critical evidence about Inmate F.s informant background, which demonstrated that he was working for the government and expected a benefit when he first began to ingratiate himself with Dekraai and ask him questions. Third, the prosecution team grasped that if the limited discovery turned over prior to the Court order was compared to what the prosecution team truly knew about Inmate F. prior to the installment of the recording device, it would reveal that team members had conspired to manipulate the presentation of Inmate F. in his interview and the subsequently written report. Fourth, the prosecution team knew that the hidden discovery, if exposed, could raise alarming concerns about the operations of Orange Countys custodial informant program, and the legal and ethical violations that are part and parcel of its daily operations. In essence, the suppressed discovery could reveal that in separate cases, prosecution team members entered into similar conspiracies to conceal evidence 63 Recusal Motion - Dekraai
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about other custodial informants. The prosecution understood that the release of Inmate F.s informant background would be extremely damaging to achieving its immediate goals in People v. Dekraai, and to concealing similar misconduct in numerous other cases. Misconduct Revealed in Informant Materials Corroborates Systemic Failings Significantly, Dekraai discusses several cases in which a suspect or defendant was referenced in the discovery. Additional detail is provided in the attached declaration and the Motion to Dismiss. The misconduct identified in these cases is relevant to the credibility of the Dekraai prosecution teams past and anticipated assertions about what led to the contact between Inmate F. and Dekraai. The authenticity of their claim of coincidental contact gradually fades as other false claims of coincidental contact are revealed. (Exhibit A8, pp. 42-50, 57-62, 73-75, 79-81, 159-164.) The numerous instances of misconduct also reveal the seriousness and scope of the legal and ethical violations that have occurred, and the ramifications that persist over time. These cases confirm a deeply rooted culture that views due process rights, the Sixth Amendment, and Brady as inconveniences for prosecutors and law enforcement who wish to play by their own rules. The case studies compellingly confirm that Wagner and his team, as noted earlier, were following an operational model for the handling of custodial informant cases, which encourages deception and misdirection. The cases discussed are also significant because of the misconduct engaged in by several other prosecution teams. The misconduct corroborates the systemic disdain for Brady and the inculcated belief that winning is the sole measure of good work. Petersen is featured prominently in the following discussions. His efforts in three cases that he tried to juries offer unique insights into the relationship between the OCDA, local law enforcement and custodial informantsthough the insights will be unsettling. Dekraai intends to call Petersen as a witness at hearings related both to this motion, the Motion to Dismiss the death penalty, the Massiah motion, and almost certainly again at trial. He is among the most important witnesses to the relationship between Inmate F. and the prosecution, the misconduct perpetuated by the Dekraai prosecution team, his communications with 64 Recusal Motion - Dekraai
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members of the Dekraai prosecution team, and the expected benefit that Inmate F. was to receive both before and after Petersen received the Informant Assistance memorandum. Petersen will also provide important insights into the custodial informant program by explaining the details of the conspiracies to conceal evidence as described herein, including specifics of the training and instruction, which ensured that all with knowledge of the wrongdoing remained silent. In sum, Petersens role in the instant matter, his actions in the identified cases, and his connection to Inmate F. and Moriel are critical. The following is a brief summary of what has been learned that is expanded upon in further detail in the motion to dismiss: PEOPLE v. LEONEL VEGA (07CF2786/GO45613) (Exhibit A8, pp. 155-205.) The trial of Leonel Vega for a special circumstance gang murder offers some of the most important and disturbing insights into the operations of Orange Countys custodial informant program. The conduct of Petersen and his team is relevant to analyzing the systemic nature of the governments misconduct, and to confirming the existence of policies that promote a wide array of deceptive techniques in the presentation of informant evidence. This case has direct significance to People v. Dekraai, as Petersen used a similar approach in the concealment of informant evidence to what was employed in the instant matter. What type of misconduct occurred in this case? Nearly every form imaginable. Petersen withheld critical discoveryturning over four pages of Moriels writingseven though Moriel wrote hundreds of pages of notes documenting dozens of incriminating statements from numerous defendants. Found within the discovery in People v. Inmate E. are notes written by Moriel that would have established that Vegas confession (introduced at trial) was obtained in violation of Massiah. The hidden notesincluding one page that was written on the same day as the four pages that were discoveredwould have immediately revealed a coordinated effort to place Vega and Moriel in disciplinary isolation in order to diminish Vegas suspicions that Moriel was an informant. However, Petersen and SAPD investigators did not stop with the concealment of notes. They 65 Recusal Motion - Dekraai
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repeatedly misled court and counsel through deceptive statements, material omissions, and suborned perjury. When Vegas counsel attempted to learn more about Moriels informant background, Petersen misled by both misdirection and silent acquiescence to Harleys expressed belief that the prosecutor turned over whatever he had available to him. During a court hearing, Petersen allowed Harley and the court to believe that he only had knowledge of Moriels assistance on two Delhi murder cases, and that the other defendant was coincidentally represented by Harley, as well. Petersen did this despite the trial court specifically stating that Vega was entitled to know the number of times in which Moriel elicited statements. Petersen never responded to what was effectively a court order for discovery. Through deceptive arguments, misleading representations, and persistent objections, Petersen was able to keep Vega and his counsel in the dark throughout the course of the proceedings. The discovery from Inmate E. also confirms that advance preparation was required between Petersen and Moriel in order to guide Moriel to deviate from the truth about a number of issues, which had been documented in his concealed notes. For instance, during his testimony, Petersen and Moriel worked together to hide any reference to the Dis-iso scam and the fact that that the two were moved from isolation into a second location where Moriel could continue to elicit statements. The testimony suggested their nearby housing locations were simply a matter of coincidental contact as informant contact would be presented in Dekraai and other cases discussed here. In addition, Moriel testified about having met Vega for the first time in the jail and becoming friends in custody prior to receiving the confession. Under the auspices of explaining the relationship between the two and why Vega would confess to him so soon after meeting, Petersen convinced the court to allow him to introduce evidence that at the time of the confession Moriel was a high power inmate. His status was allegedly based upon his standing with the Mexican Mafia, which garnered him the respect of fellow inmates. Nothing could be further from the truth. In reality, no one was lower on the 66 Recusal Motion - Dekraai
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totem pole of jail respect in the months surrounding their first meeting. As Petersen knew and was hiding from defense counsel, Moriel was believed to be an informant by the Mexican Mafia at the time, and was on their hard candy list of inmates to be killed on sight. However, with the help of his continuous ingratiation of Vega, fake paperwork showing that Moriel committed violent crimes, and $1500 in government money, Vega later convinced Mexican Mafia leaders to accept Moriel back into good standing. All of this information was described in Moriels notesagain found in the Inmate E. discoverybut was hidden from Vegas counsel. The misconduct engaged in throughout the trial turned almost bewildering, as Petersen showed an inability to restrain himself from grabbing every tactical advantage made possible by his concealment. For instance, when a private defense investigator failed to record an interview with an inmate in state prison, he called SAPD Detective David Rondou to teach the jury about how a real investigator does his job and eviscerate the private investigators credibility. Rondou testified that he trains on the subject of interviewing witnesses and records all of them, because after all the truth is the truth. (Exhibit QQ, pp. 1187:3-13.) The problem is thatunknown to HarleyRondou had interviewed Moriel on numerous occasions about alleged confessions made to him about street gang crimes. None of those interviews were recorded. The misconduct assured a conviction and its affirmance on an appeal. The unpublished opinion written by Justice Thompson is based, in part, upon provably false and misleading testimony by Moriel, who could have been powerfully impeached if the prosecution had simply complied with its discovery obligations. PEOPLE V. RODRIGUEZ (10CF0433) (Exhibit A8, pp. 217-250.) People v. Rodriguez involved another cold case gang homicide by three alleged Delhi gang members, which Petersen also prosecuted. Moriel provided notes documenting a confession by Defendant Sergio Elizarraraz. Moriel also claimed that he could identify each of the three defendants from a video in which the three suspects were seen minutes 67 Recusal Motion - Dekraai
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before the shooting. The misconduct in People v. Vega was still in the prosecutions rearview mirror as Rodriguez moved toward the preliminary hearing. Elizarrarazs attorney, Robison Harley, was the same counsel who was repeatedly misled in People v. Vega. As a result, Petersen possessed additional incentives to continue to hide Moriels notes that would have revealed his vast informant work. The preliminary hearing occurred eighteen months after Moriel wrote his notes. Yet Detective Matthew McLeod provided a stumbling set of answers, in which he expressed uncertainty about whether he ever saw the notes, then stated he did see them and finally claimed that he compared them to Moriels rendition for accuracy. He ended the questioning on this subject matter by making the dubious claim that one and one half years after they were written, he still had not obtained a copy. McLeod also failed to mention that in February of 2010, the same month when the notes were written and the interview took place, he had also met with Moriel in the jails to review Delhi gang photo albums and asked him to identify individuals within the pictures. His testimony in People v. Garcia a case sullied by its own unique deception tied to the Henry Cabrera cover upincluded one other fascinating revelation. McLeod did not bring the photo albums to Moriel. Rather, he had them in his jail cell and showed them to the detective. Nevertheless, McLeod never apparently believed it necessary to reveal this fact in the Rodriguez proceedings, even though the prosecution of two of the defendants rested on Moriels independent ability to identify them from a video. The preliminary hearing was filled with awkward moments as McLeod and Rondou struggled to explain what led them to arrive at the jail and speak to Moriel and why they did not record two interviews with himneither wanting to admit that they are trained to avoid recorded interviews with custodial informants. The motivation for these maneuvers is explained at length in the Motion to Dismiss and in the attached declaration. (The admission that the interview was not recorded was also dramatically inconsistent with Rondous perjured testimony in Vega that he recorded all of his interviews.) 68 Recusal Motion - Dekraai
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At trial, Petersen successfully moved to sever Elizarraraz from the other two defendants and proceeded against Juan Lopez and Joe Rodriguez. Petersen ultimately turned over 20 pages of the 196 pages of Moriels notes found within the Inmate E. discovery. Once again, access to other notes from People v. Inmate E. provided powerful examples of how prosecutors and members of law enforcement manipulate discovery to obtain a tactical advantage. Among those notes that were never turned over was the mysteriously dated second confession by Elizarraraz to the charged crimes, as well as Elizarrarazs statements that were highly relevant to the deception surrounding the Hennery Cabrera cases. Additionally, the prosecution withheld notes and jail records that would have uncovered that the OCSD, at the SAPDs request, moved Elizarraraz, and later co-defendant Juan Lopez, into locations so that Moriel could obtain their confessions. At the severed trial of Lopez and Rodriguez, the deception continued. Petersen conspired with SAPD investigators to present a fabricated and convoluted explanation as to why neither of Moriels interviews with the detectives were recorded, providing a new version created after the preliminary hearing. According to the detectives, there had been a mysteriously short window to speak with Moriel and both coincidentally forgot to bring their recording device believing the other had brought theirs. Although a) Moriel had been housed at the jail for the past five years and was seemingly available at any time; b) the SAPD was only a block away; c) the OCJ was a law enforcement facility seemingly filled with recorders; d) and there was little possibility that a short delay would affect Moriels ability to identify suspects in a video taken three years earlier, the investigators proceeded with the interview. While the trial could not have gone more poorly for the prosecution, Petersen's successful severance of Elizarraraz still paid enormous dividends. It kept Harley from hearing portions of Moriels testimony that would have immediately demonstrated the fraud perpetrated upon him and his client in People v. Vega. Moriel acknowledged on cross-examination that he had been engaged in far more extensive informant work than had been disclosed in People v. Vega. Although Harley was not present during the testimony, 69 Recusal Motion - Dekraai
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the same judge in People v. Vega was assigned People v. Rodriguez. However, in an amazing and undeserved break for the prosecution, the Honorable William Froeberg did not remember Moriels prior testimony, nor Petersens repeated efforts to keep Harley from questioning Moriel about the extent of his informant work. Interestingly, the prosecutions knack for getting away with misconduct was no guarantee for trial success: the two defendants were acquitted. This left Elizarraraz to proceed to trial on his own. The prosecutions case against Elizarraraz seemed far stronger, because Moriel claimed that Elizarraraz confessed to the crime. However, Petersen may have sensed that his luck might be running out and that it was time to protect himself and his partners in the conspiracy. The prosecution team walked away from the chance to incarcerate Elizarraraz for the rest of his life, allowing him instead to return immediately to the streets with a reduced charge of manslaughter. PEOPLE V. CAMARILLO (11CF2418) (Exhibit A8, pp. 250-270.) In People v. Camarillo, the defendant and two others were charged with a conspiracy to commit murder upon an inmate at the Theo Lacy Facility. The case was the first Black Flag prosecution to proceed to trial. At trial, Moriel took on the role of expert witness in Mexican Mafia operations and discussed at length his relationship with Leonel Vega, who in addition to being a Delhi gang member was also a former local leader of the Mexican Mafia. Once again, Petersen delayed identifying Moriel as a witness until the eve of trial and withheld nearly all of the relevant discovery pertaining to his work as an informant. The lead investigator for the prosecution was OCSD Deputy Seth Tunstall. The acts of misconduct by the prosecution in Camarillo, which are only understood because Dekraai received possession of the far more comprehensive set of Moriels notes from People v. Inmate E., are stunning. Taking full advantage of the concealment of Moriels notes, Petersen suborned perjury from Moriel on several subjects, including the nature of his relationship with Vega. He fabricated, with Petersen and Tunstalls assistance, that he and Vega were long-time friends from the streets when they were Delhi 70 Recusal Motion - Dekraai
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gang members togetheralthough his testimony in Vega and hidden notes were entirely inconsistent with that rendition. This deception was principally designed to again hide revelations of the Dis-iso scam. During some of the more striking moments in the trial, Petersen watched silently as Moriel provided perjured testimony about acts of violence he supposedly committed against inmates and deputiesacts that had actually been fabricated to convince Vega that he was not an informant. Tunstall, one of the leaders of the Special Handling Unit, also remained silent as Moriel repeatedly provided very believable, yet provably false testimony, though the proof resided in the notes the prosecution was hiding from the defendants. The defendants in People v. Camarillo resolved their cases for substantial sentences during jury deliberations, unaware of the misconduct committed in their own trial and how their discovery of that misconduct would have led to a far more favorable outcome. PEOPLE V. LUIS FRANCISCO VEGA AND ALVARO SANCHEZ (09CF0572/09CF0687) (Exhibit A8, pp. 205-217.) The two defendants in this case were alleged Delhi gang members charged with attempted murder and enhancements that would have resulted in life sentences upon conviction. During a witness proffer, a fellow gang member named Juan Calderon told SAPD detectives that Sanchez described the crime to him and his role in it. However, according to Calderon, Sanchez also told him that Defendant Luis Vega (Luis V.) was not present. After Calderon shared this information about the crime, neither the detectives nor Deputy DA Mark Geller, who was also present, elicited any further information about the incident, Sanchezs culpability, or Luis V.s innocence. Shortly after Calderons proffer, informant Moriel turned over notes to law enforcement documenting an in custody conversation with Alvaro Sanchez about the attempted murder. One month later, Moriel spoke with Sergio Elizarraraz about the crime. According to the notes, both Delhi gang members admitted to participating in the shooting and identically described who was present. And both omitted Luis V. from the group 71 Recusal Motion - Dekraai
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responsible. According to Moriels notes, though, Sanchez went further by expressing his disbelief that Luis V. had been charged despite his innocence, while also expressing his dislike for his co-defendant. A few months after the Calderon proffer and one month after Moriel turned over the notes of his conversation with Sanchez, the assigned Deputy DA Steven Schriver filed a motion requesting a line-up for Luis V. It appears that this motion was motivated by Calderons statements in his proffer about Luis V.s innocence and Sanchezs statements to Moriel, though the moving papers were silent about what prompted the request. Subsequent to the denial of the line-up motion, Schriver turned over the Calderon proffer. However, Schriver never disclosed Moriels notes about his conversations with either Sanchez or Elizarraraz. Moreover, it took Schriver nine more months after Moriel turned over his notes about his conversation with Elizarraraznotes that were forever concealed from defense counsel before finally dismissing the case against Luis V. This meant Luis V. was incarcerated for a total of two years for a crime he never committed. After the trial court excluded Sanchezs statements to detectives, the prosecution could have benefitted from Sanchezs alleged confession to Calderon. However, the failure of detectives to question Calderon thoroughly about Sanchezs statements apparently because the discussion had veered into Luis V.s innocenceultimately made Calderon a less compelling witness for the prosecution. After the courts ruling excluding Sanchezs statements, the prosecution abandoned its pursuit of a life sentence and the case settled. Additionally, the OCDA never filed charges against Elizarraraz for this crime, even though he purportedly admitted his responsibility to Moriel. After Petersen allowed Elizarraraz to receive credit for time served on the special circumstances murder discussed above, the prosecution certainly would have liked to have filed charges against Elizarraraz for his involvement in this shooting. However, the prosecutions misconduct had boxed them into a corner yet again; they could not rationally explain why they had concealed discovery of notes memorializing his admitted participation in the above 72 Recusal Motion - Dekraai
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referenced crime. It appears that the prosecution team correctly recognized that the desire to conceal evidence of Luis V.s innocence was not a particularly compelling justification for the delayed filing of attempted murder charges against Elizarraraz. Elizarraraz would never know why he got away with murder and attempted murder several times. And probably he will never appreciate that the biggest beneficiaries of Orange Countys corrupt custodial informant program and its steadfast commitment to self-preservation, are people just like him. PEOPLE V. RICARDO LOPEZ (02CF1819/G042168) (Exhibit A8, pp. 270285.) In 2002, Lopez was charged in the murder of Carmen Zamora, which occurred in a cul-de-sac close to Kilson Street and Edinger Avenue in Santa Ana. The proceedings were delayed after Lopez was found incompetent to stand trial due to serious mental health issues. At his trial in 2009, the prosecution presented several witnesses who identified Lopez as taking out a firearm shortly before Zamora was killed. The defense did not dispute that Lopez was present at the scene, and even acknowledged the possibility that he fired a gun. However, they argued that another male suspect shot Zamora. The defense pinned its hopes, in part, on the testimony of the only two witnesses who saw the killer fire his weapon. Neither of these witnesses identified Lopez. Both said the shooter was bald. Lopez was arrested the same day and had hair. Both witnesses also described the shooter as being between sixteen and eighteen. Lopez was twenty-two. In his closing argument, Alternate Defender Frank Davis discussed why he felt compelled to address the culpability of a third party whose identity was unknown: A week from now, a year from now, 20 years from now, if an individual says I was that second guy out there, I was the 17 year old who chased the car with a shaved head. You open the newspaper and you read that, are you going to say, wow, Mr. Davis never brought that up. We didn't have any idea there was a second suspect" (Exhibit N, p. 1070:2-8, emphasis added.) The prosecutor's rebuttal was committed almost entirely to mocking the possibility of a second suspect being at the scene, whom he repeatedly and derisively described as the 73 Recusal Motion - Dekraai
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magic man. The jury rejected the defense arguments and convicted Lopez, who later received a life sentence. Jurors, though, would never have guessed how prophetic Daviss words would be. Almost one year to the day after Daviss closing argument, Moriel gave law enforcement his notes documenting a conversation with fellow Delhi gang member Alvaro Sanchez. Moriel wrote the following: We talked about a few other scenarios that took place about Gato (Joseph Galarza) R.I.P. killing a chick on Edinger and East Kilson. In the cul de sac when he got in a shootout with the guys from McClay St. a few years ago (Exhibit O, p. 2248.) SAPD detectives examining the note would have immediately known that Sanchez was speaking about the Zamora murder. The shooting of a female in the cul de sac at Edinger and Kilson clearly referred to the murder of Zamora. Moreover, a quick check of Galarzas age at the time of the crime might have convinced detectives that Lopezs counsel could see into the future. He was only one year off. Galarza was sixteen when Zamora was killed. But there was far more to Galarza that would have caught the eye of any member of the prosecution team open to exploring the possibility of a wrongful conviction. Galarza was a Delhi gang member well known to every SAPD officer. A SAPD officer had killed Galarza in 2009, while he was on the run from a felony warrant for possessing a firearm to benefit his gang. Furthermore, the lead detective in Lopez, Detective David Rondou, would soon come across far more evidence about Galarzas propensity for violence. One month after receiving the note pertaining to Zamoras murder, Oscar Moriel wrote notes indicating that Galarza had twice admitted to being the shooter in another homicide. (One year later, Petersen charged Inmate I. as the shooter in that crime. His team, which included Rondou, thereafter concealed evidence that Galarza, not Inmate I, had committed the murder.) Although not discussed at Lopezs trial, the location of the crime would have further corroborated what Sanchez had described. The crime took place within Delhi gang
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territory. Additionally, the note suggested that members of another local gang were present during the shooting and involved in the violence. Prosecution team members would have recalled that witnesses had provided information about the possibility of other armed individuals driving through the area, including one who was identified by name. Upon receipt of Moriels note, a review of that individuals criminal history would have revealed pending gang charges against him connected to the specific gang that Sanchez mentioned. What did prosecution team members do with the evidence suggesting Lopez may not have been responsible for Zamoras death? The same thing they have likely done many times when coming across exculpatory evidence: absolutely nothing. Four years have now passed since authorities received Moriels note. Neither Lopez nor his counsel has been shown this note, nor have they been informed of its contents. Rather, the prosecution has permitted year after year to pass as memories have further faded and potential investigative leads have eroded with time. Yet none of this should come as a surprise; far too often prosecutors and law enforcement officers in Orange County have demonstrated a belief that the only informant evidence to which defendants are entitled is that which will help convict them. THE HENRY CABRERA CASES (Exhibit A8, pp. 285-347.) The story of Henry Cabrera within the criminal justice system is uniquely illustrative of the corrupted ethics imbedded within the custodial informant program and of the existing prosecutorial and law enforcement culture that devalues defendants rights. The cases involving Henry Cabrera and the actions of prosecution teams are also significant because they powerfully corroborate that neither the Dekraai team nor the Petersen-led teams created their own playbook for misconduct. In February of 2010, members of local law enforcement were provided with what was seemingly an extraordinary example of the custodial informant programs value in solving cold cases. Oscar Moriel handed over a note to law enforcement documenting a conversation he had with Sergio Elizarraraza note never disclosed to Elizarraraz and his 75 Recusal Motion - Dekraai
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co-defendants in People v. Rodriguez, but located by Dekraai in the People v. Inmate E. discovery. Elizarraraz had given Moriel a detailed description of the unsolved murder of Ruben Cabanas by Delhi gang members, which occurred on November 28, 2007. Included within the note was a tremendous lead: the name of the purported driver of the suspect vehicle. For prosecutors and detectives, though, Henry Cabrera was the one lead they never wanted. During the past decade, Cabrera, also known as Stomper, has been a gang member very much on the radar of prosecutors and detectives. In fact, their efforts led to the successful prosecution of Cabrera for carjacking and gang charges in 2009, culminating in the imposition of a life sentence. However, a closer examination of the prosecutions attempts to present and suppress evidence about Cabreras gang membership since 2005 offers stunning revelations about the manipulation of evidence, misleading expert testimony, significant Brady violations, and the unwillingness of the OCDA to disclose evidence of a wrongful conviction. The one prosecutor who unquestionably studied Moriels note was the same one who concealed it in People v. Rodriguez: Deputy DA Petersen. The name Henry Cabrera had particular significance to Petersen. Petersen was the prosecutor who secured Cabrera's conviction and life sentence. Only six months after obtaining that life sentence, Moriel handed over his notes regarding the Cabanas murder. Petersen and the detectives who read the note seemingly would have been thrilled to hold Cabrera accountable for the murder of a man who was simply in the wrong place at the wrong time. But there was an enormous problem. During Cabreras trial, Petersen convinced jurors that Cabrera committed a carjacking for the benefit of the Highland Street gang. The problem was that Moriel's note identified Cabrera and his fellow gang members who participated in the murder of Cabanas as members of the Delhi gang, a known rival of the Highland Street gang. In evaluating whether to prosecute Cabrera for murder, the prosecution knew they would be unable to construct a believable scenario in which Cabrera had recently switched gangs. Cabrera participated in the Delhi murder of Cabanas just 17 days before he 76 Recusal Motion - Dekraai
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committed a carjacking as a member of the Highland Street gangat least according to Petersen, Supervising Gang Detective Ronald Castillo, and jurors in Henry Cabreras case. Therefore, when deciding whether to pursue charges against Cabrera for the murder of Cabanas, prosecutors and detectives likely thought it was better to leave well enough alone. Unburdened by concerns such as due process and Brady, the prosecution team relied upon considerations that appear far too prevalent throughout this motion: keeping bad people in custody regardless of their case-specific criminal liability and protecting against revelations of misconduct. As a result, they determined that if they charged Cabrera as a Delhi gang member, it might lead to 1) his life sentence connected to his supposed membership in the Highland Street gang being thrown out, with no assurances he would be convicted of the Cabanas murder; and 2) troubling revelations about both the earlier prosecution of Cabrera as a member of Highland Street and the actions of multiple detectives. Despite their deliberate efforts, prosecutors and law enforcement found it increasingly difficult to avoid both Cabrera and the Cabanas murder. In August of 2010, SAPD detectives spoke with Juan Calderon, a Delhi gang member charged in a separate homicide. Calderon claimed that he was with Cabrera and other Delhi gang members during the Cabanas murder. Consistent with Moriels note, Calderon said that Cabrera drove the vehicle used in the crime and was a veteran member of the Delhi gang. Deputy DA Geller, who was prosecuting Calderon and had already decided to use him as a witness in several Delhi cases, was likely conflicted about how to proceed. In 2005, Geller also had tried Cabrera in a gang case for the benefit of the Highland Street ganga prosecution that in hindsight raises a number of concerns. The jury acquitted Cabrera of attempted murder but found that he had committed street terrorism on behalf of the gang. In 2008 (while Cabrera was awaiting trial for the carjacking charge) and 2009 (after he was convicted), Geller received information showing that Cabrera was not a member of the Highland Street gang at the time of the carjacking. The information also raised doubts about whether Cabrera was a member of the gang at the time of the 2005 77 Recusal Motion - Dekraai
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crime that Geller prosecuted. Geller apparently did not act on this information. Geller ultimately filed charges in the Cabanas murder, but not against Cabrera. Instead, Geller charged two other alleged Delhi gang members, whom Calderon identified as participating in the murderincluding a passenger who never left the vehicle during the shooting. Calderon testified in two separate trials about Cabreras role in the shooting and Cabreras position as a veteran member of Delhi. Two prosecutors, Geller and Rahul Gupta, introduced evidence at preliminary hearings and trials related to this murder and two others in which Calderon provided information that Cabrera was a member of the Delhi gang at the time of the Cabanas murder. The Cabrera cover-up offers important insights into a prosecutorial culture disinterested in discovery and ethical obligations. Evidence drawn from numerous cases proves that prosecutors and detectives realized that Cabrera was not a member of the Highland Street gang prior to the filing of the complaint alleging his active participation in 2007. Additionally, prosecution team members were persistently confronted with evidence over a five-year periodbeginning with an interview of a supposed Delhi gang member only ten days after the carjackingthat allegations of Cabreras membership in Highland Street gang were erroneous. In order to protect cases and reputations, prosecutors and detectives joined a conspiracy, beginning in 2008 and adding loyalists along the way, committed to 1) allowing SAPD Detective Ronald Castillo to provide misleading and unimpeached expert testimony on the subject of Cabreras gang affiliation, and 2) ensuring Cabreras wrongful conviction and the finality of that conviction. What about the prosecutions responsibility to inform Cabreras counsel that they possessed Brady evidence that Cabrera was incorrectly charged as a Highland Street gang member and later wrongfully found in violation of enhancements that resulted in a life sentence? What about their responsibility to disclose that Castillo had offered a mistaken or purposefully misleading opinion that Cabrera was a member of the Highland Street gang in five hearings related to two cases? The conspirators knew that because Castillo had served as the supervising detective for the SAPDs gang unit for over a 78 Recusal Motion - Dekraai
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decade, there were unquestionably dozens of cases where critical juror decisions were based upon his reliability in determining gang membership. What about the prosecutions duty to share Castillos previous testimony in two cases that Cabrera was a member of the Highland Street gang, which could have been used to impeach Calderons testimony that Cabrera was a long time Delhi gang member? Castillos opinion had the potential to powerfully undercut Calderons claim that he was just a minor player in the Cabanas murder, who was simply following the lead of a veteran member of his gang. And what about the prosecution team members responsibility to reveal their own complicity in the Cabrera cover-up? The questions are rhetorical. Prosecutors and their team members never seriously considered taking any steps that would damage reputations, reduce their chances of winning cases, and raise issues about the validity of their past and future convictions. Aided by the unimpeached testimony of Juan Calderon and SAPD detectives who participated in the Cabrera cover-up, Defendant Guillermo Brambila was convicted in the Cabanas murder. Dekraai will also present a brief analysis of how prosecutors' decisions to hide Brady evidence may have deprived defendants in two other cases of their right to a fair trial: People v. Damien Galarza and People v. Gabriel Castillo. These two cases and the others connected to the Cabrera coverup corroborate that the misconduct in Dekraai is not isolated but rather the product of policies and training aimed at circumventing Massiah and Brady, especially when compliance could lead to something deemed unacceptable: a favorable verdict for the defendant. Revelations of Systemic Misconduct in the Custodial Informant Program The reality is that despite Assistant DA Andersons stated concern about hiding things, law enforcement agencies and the OCDA have decided that concealment is the preferable tool for success, rather than an honest presentation of facts. As such, they have identified and incorporated a wide range of deceptive practices to effectuate their goals. How has this been accomplished without their efforts being discovered earlier? Planning, teamwork, and dedication. The OCSD, the OCDA, and local law enforcement agencies 79 Recusal Motion - Dekraai
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have worked cohesively to ensure that their objectives are achieved without defendants and their counsel recognizing the misconduct upon which their success has often been built. In sum, it is difficult to imagine an informant program more opposed to the values and safeguards that Assistant DA Anderson correctly professed as essential. Local prosecutorial agencies have created a program that is solely committed to obtaining and presenting evidence that will assist in convicting and imposing maximum punishment upon high-value defendants. This effort has been undertaken without the slightest concern for the legal and ethical obligations put in place to ensure due process. Prosecution teams have consistently failed to provide defendants with an accurate understanding of the informants relationship with the government, as well as material information regarding his background. When their relentless concealment of evidence is finally revealed, so is the hypocrisy in instructing the rest of this nation to present the CI in the most accurate light possible to avoid the appearance that the police and prosecution are hiding things. Effort to Obtain Dekraais Psychological Records This motion will also demonstrate that the Dekraai prosecution team's misconduct in this case is not limited to the custodial informant program. Dekraai signed a general release for his medical records at the time of his interview with law enforcement on October 12, 2011. The prosecution team subsequently requested a copy of Dekraais psychological records from one of his treatment providers, Dr. Ronald Silverstein. However, Dr. Silverstein's counsel, Joel Douglas, informed the prosecution team that the release was legally insufficient because it did not specify the disclosure of psychotherapist records. At the direction of the prosecutorsalthough not acknowledged in any report Detective Krogman visited Dekraai again at the jail. Dekraai had already been charged and was represented by counsel when Krogman met with Dekraai. Therefore, the contact was made despite the failure to request and receive authorization from defense counsel prior to speaking with him on October 17, 2011. Krogman asked that Dekraai sign an expanded release allowing the prosecution to take possession of his psychological records. This request was made in violation of both the Sixth Amendments right to counsel and ethical 80 Recusal Motion - Dekraai
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guidelines that prohibit contact with a represented party. Dekraai refused to sign the new release. (Exhibit A8, pp. 132-134.) After Dekraais refusal, it appeared the prosecution had given up. However, two days later the prosecution team interviewed Inmate F. about his conversations with Dekraai and learned about possible legal strategies and defenses based upon mental health issues. The prosecution team, thereafter, initiated an aggressive attempt to obtain Dekraais psychological records. Wagner and his team subsequently obtained a search warrant for the records based upon an affidavit that was highly misleading and included material omissions, and resulted in a search warrant being issued for psychological records kept in a lawyer's office without the appointment of a special master. Despite a subsequent court order directing the prosecution to not take possession of the records until a hearing occurred on the legality of the search warrant, Wagner refused to direct his investigators to delay the seizure. Ultimately, the investigators took the records from the office of counsel for the psychologist, even though Sanders informed Krogman of the courts ruling after Wagner refused to do so. The records were also taken despite the objection of the psychiatrists counsel, who attached written opposition to the seized documents. The records were subsequently transported to the court, where they have remained sealed. (Exhibit A8, pp. 134-140.) Effort to Further Inflame Potential Jurors and Family Members Against the Defense The Motion to Dismiss and the attached declaration also discussed the prosecution team's repeated public denigration of the Dekraai defense team. In the midst of repeatedly committing serious discovery violations, the prosecution has, nevertheless, rarely lost the opportunity to contrast a conscientious prosecution with a defense team that is not only insensitive to the pain of victims families, but also creates delays to simply frustrate the judicial process. It must be emphasized that the victims loved ones have every right to express their desire for swift justice and their anger that the case has not been tried more quickly. A 81 Recusal Motion - Dekraai
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responsible prosecution team would empathize with those sentiments and also explain the enormity of what is required for the defense to be sufficiently preparedperhaps emphasizing that future reviewing courts will closely examine defense counsels preparedness when determining the finality of this case. A responsible prosecution team would not possibly have taken the approach pursued privately and publicly by the OCDA. And it is almost inconceivable that any prosecution team would inflame emotions against a defendant and his attorneys while simultaneously engaging in persistent, serious acts of concealment. Ultimately, the prosecutions efforts to hide the ball and then blame the defense for the time required to find it, provides another powerful example of a prosecutorial culture that only values winning. (Exhibit A8, pp. 140-146.) Hearing in People v. Wozniak Recent events in People v. Wozniak provide additional, compelling evidence that the OCDA has a conflict and is unable to proceed impartially in the instant matter. On February 6, 2014, Sanders filed a Motion to Continue in People v. Wozniak, in Department 35 of the Orange County Superior Court. (Defendants Motion to Continue with attached declaration, filed Feb. 6, 2014, People v. Wozniak (Super. Ct. Orange County, No. 12ZF0137), attached herein as Exhibit A17.) The declaration filed in support of the continuance identified the need for additional time to prepare a Motion to Dismiss and a Motion to Recuse based upon several issues, including misconduct associated with the Orange Countys custodial informant program, deception associated with Inmate F., and issues of governmental misconduct specific to the facts of that case. (Exhibit A17.) On the date of the hearing, February 7, 2014, Wozniak was not transported and the pre-trial was continued to February 14, 2014. On February 13, 2014, Deputy District Attorney Matt Murphy filed written opposition. (Peoples Response to Defendants Motion to Continue with attached declaration, without exhibits, filed Feb. 13, 2014, People v. Wozniak (Super. Ct. Orange County, No. 12ZF0137), attached herein as Exhibit A18.) This court had also set a pre-trial hearing set for February 14, 2014, to consider arguments regarding whether the Motion to Dismiss and the related exhibits should be unsealed. 82 Recusal Motion - Dekraai
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On February 14, 2014, Sanders checked in with this courts staff, and was informed that the court would be ready to address the parties at approximately 9:30 a.m. (Exhibit A8, p. 348) Neither Wagner nor Simmons were present in the courtroom. Sanders proceeded to Department 35 to check in with the court on People v. Wozniak, regarding the Motion to Continue the pre-trial date. Wagner, Simmons, and Erickson were seated in Department 35. There was also a very large group of attorneys from the OCDA present in the courtroom, including Mark Geller and several homicide prosecutors. (Exhibit A8, p. 349.) Petersen was originally in Department 45, but later came to Department 35. When members of the Dekraai defense team began to exit Department 35 in order to arrive as this court at approximately 9:30 a.m.the Honorable James Stotler was occupied with another matterthe Dekraai prosecution team indicated they wanted the hearing on Wozniak to proceed first. It would soon become apparent why the prosecutors had chosen the Dekraai hearing to follow Wozniak and why there were so many local prosecutors gathered in Department 35. (Exhibit A8, pp. 349-350.) When the Wozniak matter was called, Sanders requested several times that the parties first proceed to this court in order to resolve the sealing issue, as the contents of that motion were responsive to several contentions made in Murphys opposition. 11 (Exhibit A19.) However, Murphy insisted that he be able to address the court first. When Sanders asked if the Dekraai prosecution team planned to ask to seal the materials for an additional period of time, Murphy claimed to have no information on that subject and no one from the Dekraai prosecution team came forward to clarify their position. (Exhibit A19.) After prodding by Murphy, Judge Stotler permitted the prosecutor to present his argument. The focus of Murphys presentation, accompanied by a Power Point presentation, was that The court reporter present during the continuance motion in Wozniak quickly transcribed the hearing, despite her other obligations. However, because Dekraais counsel received the transcript only a few hours before the filing this motion, his counsel reserves the right to present further analysis of the transcript and Murphys Power Point presentation that was also received shortly before filing, and will be identified herein as A20. 83 Recusal Motion - Dekraai
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Sanders had falsely accused him of prosecutorial misconduct and had made knowingly false representations in the Motion to Continue. (Exhibit A19.) Murphy stated that he had counsel present and was ready to testify to answer the allegations. He also stated that he wanted to put on witnesses responsive to the Motion to Continue. 12 (Exhibit A 19.) The language of the Motion to Dismiss stated the following: The general issues that will be discussed in the Motion to Dismiss include, but are not limited to, the following, which are stated based upon information and belief: a) The government purposefully violated Daniel Wozniaks Sixth Amendment Right to counsel through efforts by Orange County Sheriffs Department (OCSD) personnel in and around the time of the filming of the MSNBC program Lockup. Mr. Murphy has indicated to me that he intends to introduce video from that aired program at the penalty phase of this case. Regardless of whether that decision by Mr. Murphy remains over time, the prosecution engaged in outrageous governmental conduct by violating Mr. Wozniaks Sixth Amendment Right to Counsel for the purpose of obtaining damaging statements that they believed would be available for them at trial and also damage Wozniak before the viewing public, which would include potential jurors. This effort was particularly egregious considering in view of the long-standing policies engaged in by the OCDA and the OCSD to violate constitutional rights, which will be detailed; b) The prosecution teams efforts to obtain inculpatory statements from Mr. Wozniak in this case are consistent with trained and inculcated policies of the OCDA and local law enforcement, which are designed to At the close of the prosecutors arguments, Murphy said that ..todays the date that the defense get to put up or shut up on the evidence of my prosecutorial misconduct. And Im available all day (A19, p. 32, emphasis added) He suggested that Sanders could be given time to respond to his arguments and the recently filed motion. However, Sanders decided to respond to the allegations immediately, taking into account the following: 1) Wagner had not filed an additional request to seal the Motion to Dismiss; 2) neither Murphy nor a member of the Dekraai prosecution team came forward with information about whether they intended to seek an additional sealing period, and no request had been made; 3) Sanders knowledge that he would not discuss the single identified page to date for which redaction had been requested, and 4) Sanders separate obligation to Wozniak to immediately respond to allegations detrimental to Wozniaks case. (Exhibit A8, p. 349)
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obtain statements regardless of their legality; c) The Wozniak prosecution team, which consists of members of the OCDA, the CMPD and the OCSD, obtained statements from Inmate F., in knowing violation of Mr. Wozniaks Sixth Amendment right to counsel. This concealment of Inmate F.s background as a custodial informant is relevant to numerous issues, including the reliability that the Wozniak prosecution team will disclose mitigating evidence in this case, as well as issues of systemic deception related to the custodial informant program; (Exhibit A17, p. 5-6, emphasis added.) A prosecutor has a right to raise a good faith assertion about the ethical violations of his opponent and certainly is able to file a complaint with the California Bar Association if he or she believes that the Rules of Professional Conduct have been broken and redress is required. However, it is difficult to conceptualize how defense counsels declared intent to raise the issue that the prosecution engaged in outrageous governmental conduct in a yet unwritten Motion to Dismiss would permit good faith claims that Sanders had lied and falsely accused Murphy of prosecutorial misconductparticularly considering that the prosecution was not identified as Murphy, but rather members of the OCDA, the CMPD and OCSD (Exhibit A17, p. 6.) Murphys unique and strident presentation in front of a crowd of prosecutors who had apparently come to support the exposure of Sanders as a liarshortly after defense counsel submitted a motion documenting wrongdoing of local prosecutorsilluminates the true motivations of Murphy and the OCDA. The impetus for Murphys performance was to emphasize to Sanders that he could face extremely serious allegations and consequences for his actions in both Dekraai and Wozniak. Murphys intent is corroborated by another, and much more serious assertion by Murphy at the February 14 hearing: Murphy announced to the court that he would refrain from pursuing perjury allegations against Sanders based upon the contents of his declaration, while emphasizing that such findings would be appropriate. (Transcript of pre-trial hearing in People v. Wozniak, February 21, 2014, attached herein as Exhibit A19, p. 23.) The decision to inform the court and Sanders that opposing counsel
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could potentially face perjury charges, particularly in the context in which this was done, was not made in good faith, and has implications for the Motion to Recuse in the instant matter. Even if Murphy had truly not read the Motion to Dismissas he statedhe certainly knew that there were fellow prosecutors in attendance, including his supervisor Dan Wagner, who were alleged to have committed serious acts of misconduct. He also knew that the allegations against Petersen included that he had suborned perjury in violation of P.C. section 127. Considering the recent allegations made in the Motion to Dismiss and Murphys knowledge that the recusal motion was imminent, as well as Sanders declared intent to file similar motions in Wozniak, the prosecutors decision to advise defense counsel that he could use his power as a prosecutor to bring perjury charges subjecting Sanders to incarceration, should appropriately be viewed as a retaliatory effort to dissuade him from zealous advocacy for his clients. Murphy reminded Sanders that the prosecution was not beyond bringing charges that could land him in jail or prison, and cause him to lose his license to practice law. And because the threat was not made in good faith, the message was certainly received that the prosecution would not be bound by legal or ethical restraints in prosecuting Sanders, if they so choose. 13 Murphys response to the continuance motion offered another tremendously illustrative point, though it was certainly not the one intended. The OCDA will scrutinize ever word of a motion looking for evidence that the potential wrongdoer has acted unethicallyas long as it does not involve a member of their own office. Murphy studied each word of a Motion to Continue looking for the chance to brand its author a
13
Sanders responded to Murphys arguments by first restating that the motion did not
indicating that a future motion would allege prosecutorial misconduct, but rather outrageous governmental misconduct, and directed Murphy and the court to language from the continuance motion consistent with that point. (A19, p. 30.) To be abundantly clear, it is alleged that Murphy engaged in prosecutorial misconduct at the hearing in People v. Wozniak, which is relevant to this matter. 86 Recusal Motion - Dekraai
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perjurerwho just by coincidence documented evidence that his colleague suborned perjury two weeks earlier, as well as a number of other allegations with far reaching implications for his fellow attorneys and his office. Murphy spent a week writing a motion, working on a corrected version and preparing a Power Point in order to bring his message home. The intensity of the effort is impressive, even if not well-intentioned. But did he not want to spend at least a few minutes studying a motion that had far greater significance to the Wozniak litigation? But the real question is whether it is reasonable to expect to expect that an attorney from the OCDA would bring a similar energy to studying what is detailed in the Motion to Dismiss and then announce their findings honestly, knowing whom they will see every day at work for the rest of their careers with the OCDA. The difference between an analysis of the Motion to Continue in Wozniak and the Motion to Dismiss in Dekraai is that latter motion does not require semantic contortions to find wrongdoing. Therefore, for those prosecutors who came to see the continuance motion, their time would have been far better spent studying the Motion to Dismissbut, of course, only if their interest was in getting to the truth about issues of justice in this county and what has transpired to subvert it. If they had studied the Motion to Dismiss with an open mind and unafraid of the consequences for their own careers and those of their friends, those attorneys would have found themselves articulating real angernot performance-basedand the recipient would not have been defense counsel. The obvious reality is that the OCDA did not receive the Motion to Dismiss in Dekraai and begin a careful assessment of potential wrongdoing to determine what problems may exist and what they could do to make sure they were addressed and not repeated in the future. Their goal was to defeat the motion, and if that meant describing its author as a liar who should be in custody if one of the prosecutors was not as gracious, so much the better. The fact that Murphy purportedly did not even read the motionand at the very least the section addressing the contact between Inmate F. and Wozniak, perhaps requiring fifteen minutes further speaks to the offices disinterest in carefully analyzing 87 Recusal Motion - Dekraai
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the substance of the allegations and instead to their commitment to defeating the allegations, regardless of their accuracy. They have hoped that by repeatedly and emphatically denigrating the Motion to Dismiss that the public will trust prosecutions assurances that there is nothing to see in the 505 pages and thousands of pages of exhibits To date, the prosecution has embraced a united we stand, divided we fall mentality. That may make sense from a tactical perspective on a myriad of issues raised by the Motion to Dismiss and that route significantly improves the chances that alleged wrongdoers will stick together. However, this position certainly damages any argument that a member of the OCDA can impartially prosecute the case, and is injurious to the justice system in this county. Wagner and the office understandably fear that if they acknowledge that serious misconduct has occurred, they may be headed down a slippery slope of dissipating credibility, particularly after brazenly labeling the allegations as scurillous and filled with untruths. Acknowledging wrongdoing by those connected
directly to the Dekraai prosecution, such as Petersen, presents particular risks. If for instance, the OCDA admitted that there is compelling evidence that Petersen committed repeated and serious acts of misconduct described in these motions, it would mean that, at the very least, he is viewed as unfit to continue prosecuting cases on behalf of the OCDA. However, decision-makers in the OCDA also realize that loyalty is two-way street and that abandoning Petersen could create a significant threat that he would speak candidly about a number of issues that pose a considerable risk to the Dekraai prosecution team and the Motion to Dismiss. The OCDA also certainly recognizes that a decision by Petersen to not answer questions at the hearings and trial presents another set of risks regarding whether the OCDA can prosecute this caseas they would not be the appropriate agency to grant immunity to him for his criminal conduct because of their conflicted position. At some point in the future, either incremental or substantial movements away from the OCDAs responses to date will likely come. But this should be recognized for what is: another cost-benefit calculation simply designed to defeat the defense motions and ensure that Dekraai is sentenced to death. After all, an institution that truly prioritizes justice 88 Recusal Motion - Dekraai
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including for defendantswould have long since abandoned its rhetoric, acknowledged the serious problems uncovered, and gotten down to the business of making sure that these types of legal and ethical violations never happen again. In light of the OCDAs responses to date, acknowledgement of wrongdoing subsequent to the filing of this motion cannot reasonably be viewed as an act demonstrating either a lack of a conflict or impartiality. Rather, such efforts will simply show that a superior tactician within the OCDA has come to realize that the public and private responses have severely damaged their arguments responsive to the defense motions. REMEDY Case specific and systemic misconduct, as well as the implications of that misconduct, require recusal of the OCDA. Both prongs of section 1424 have been met, in that a conflict exists, with the result being the inability of Dekraai to receive a fair trial if the OCDA remains as the prosecuting agency. The conflict and the resulting inability of the OCDA to provide a fair trial are abundantly clear. Issues raised in the Motion to Dismiss illuminate disturbing facts relating to the credibility of the Dekraai prosecution team, numerous members of the OCDA and local law enforcement, as well as the criminal justice system in this county. Any member of the OCDA charged with the responsibility of responding to the enumerated allegations would carry the impossible burden of protecting the future of their colleagues careers and their offices reputation while somehow also protecting Dekraais due process rights. While the prosecutor would be required to turn over evidence of wrongdoing committed by the prosecution in this case and related cases, to do so would bring massive personal, professional, and institutional damagewhile assisting a defendant whom the OCDA understandably despises. As prosecutors often state, past behavior is certainly the best predictor of future conduct. The defense motions offer examples of repeated, serious acts of misconduct by numerous prosecutors and members of local law enforcement. Yet not a single OCDA prosecutor has ever come forward to speak out. Where is the whistleblower? The reality 89 Recusal Motion - Dekraai

People v. Dekraai - Recusal Motion

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