OCDA Says You Have the Right to Self-Incrimination

Santa Ana Bail Bond Store

By R. SCOTT MOXLEY , OC Weekly

Despite competing tasks, Orange County prosecutors and public defenders routinely engage in cordial backslapping. They’ll chat about their personal lives, tell jokes and share lawyerly gossip during court breaks. Defendants sometimes wonder if that coziness means the trial that left them convicted wasn’t genuinely adversarial.

But a huge, bitter rift over alleged “unconscionable” prosecutorial cheating recently shattered that comradery. At open court sessions this month in two, high-profile homicide cases, hostilities erupted between once-friendly lawyers. Voices were raised and fingers pointed. As punctuation to assurances this war has only just begun, one of the parties slammed a stack of documents on a wooden courtroom table.

Assistant Public Defender Scott Sanders fired the opening salvo on Feb. 7 when he filed an explosive 505-page motion claiming his investigation uncovered “compelling evidence of shocking misconduct” by local law enforcement. The alleged corruption involves a systematic effort to violate the rights of pretrial, arraigned defendants who’ve invoked their constitutional right to not answer government questions, especially without the presence of a defense lawyer. According to Sanders, homicide and gang prosecutors working with police detectives and sheriff’s jail deputies have repeatedly circumvented the law by employing in-custody informants who befriend unsuspecting targeted defendants and ask probing questions.

“There has been a systematic effort to violate the 6th Amendment,” said Sanders, who represents Daniel Wozniak and Scott Dekraai, both of whom have admitted guilt but hope to avoid the death penalty.

Criminal defense attorney Kenneth A. Reed is paying attention to Sanders’ accusations. Santa Ana Police Department (SAPD) cops arrested Vanesa Zavala, one of Reed’s clients, for the Jan. 19 beating death of Kim Pham. Invoking her constitutional rights, Zavala refused to answer questions and requested legal counsel. SAPD nonetheless sent an undercover cop into her cell to trick her into talking. The tactic alarms Reed, but Brian Gurwitz—a former OC prosecutor now in private practice—says California courts allow cops to deceive arrestees. “The public may be startled to learn that Miranda protections don’t apply when someone thinks he or she is talking to a fellow inmate. Until the arraignment, the police can ignore the suspect’s refusal to speak to them by using a fake inmate to ask questions.”

But there’s no doubt arraigned defendants are shielded from such duplicity, according to Sanders, who says he discovered prosecutors violated this protection while studying thousands of pages of documents and listening to hours of surreptitious jail recordings prosecutors strenuously fought to keep secret but ultimately surrendered after a judge ordered their release.

“The court-ordered discovery reveals investigatory and discovery practices by [prosecutors] that are rooted in deception and concealment; an unchecked and lawless custodial informant program overseen by the Orange County district attorney’s office (OCDA); and a string of prosecutions which confirm a culture that confuses winning with justice—prosecutions marked by repeated and stunning Brady violations, suborned perjury and a myriad of other misconduct,” Sanders told Superior Court Judge Thomas M. Goethals. “Scary stuff is going on in Orange County courthouses.”

(In the Brady case, the U.S. Supreme Court ruled it is unlawful for prosecutors to hide evidence favorable to a defendant.)

Sanders singled out Dan Wagner, head of the DA’s homicide unit and the prosecutor in the Dekraai case, for “terribly troubling and unethical” conduct. He says in his motion that Wagner actively engaged in plots to encourage Dekraai to unwittingly reveal defense strategies for the upcoming March 24 trial, managed document hiding, shielded notoriously unreliable informants from scrutiny, and helped to craft the false story that these informants acted without government prodding or enticements.

Wagner denies any wrongdoing and has contemptuously labeled the accusations as scandalous.

Matt Murphy, Wagner’s DA colleague who is handling the Wozniak case, also took issue with Sanders’ complaints that the OCDA used the informant known as “Inmate F”—a despicable Mexican Mafia, career criminal—to trick that defendant into talking. Murphy equally denies a role by his office in an MSNBC Lock Up broadcast that featured Wozniak speaking confidently in his cell without the knowledge of Sanders. It wasn’t his fault the public defender lacked “client control” and that Wozniak said “a bunch of stupid stuff,” the prosecutor said.

On Feb. 14, in front of Superior Court Judge James A. Stotler, Murphy declared there’s not “a scintilla” of evidence he participated in either controversy, and he prodded the public defender to prove his accusations. “Today’s the day to put up or shut up,” said a seething Murphy. “I didn’t talk to [MSNBC] before, during or after [their broadcast].”

Sanders called the prosecutor’s adamant denials “histrionics” and said he was ready to defend the content of his motion, a document with 20,000 pages of exhibits. But Stotler—who cringes when legal battles turn rancorous—declined Murphy’s request to settle the dispute during that pretrial hearing. “This issue isn’t on the calendar for today,” he reasoned.

As a remedy for the OCDA’s alleged “outrageous government conduct,” Sanders wants Wagner and Murphy barred from seeking the death penalty in either of his cases. Or, he wants what he sees as a more trustworthy California Attorney General’s office to replace the pair. His cause took bigger steps inside Goethals’ court. That judge, a former defense attorney and homicide prosecutor, said transparency and ethics are critical to the criminal-justice system. He unsealed the public defender’s brief that for a week had been blocked from public viewing at the request of Wagner.

“There has been a systematic effort to violate the 6th Amendment,” said Sanders, who represents Daniel Wozniak and Scott Dekraai, both of whom have admitted guilt but hope to avoid the death penalty.

Criminal defense attorney Kenneth A. Reed is paying attention to Sanders’ accusations. Santa Ana Police Department (SAPD) cops arrested Vanesa Zavala, one of Reed’s clients, for the Jan. 19 beating death of Kim Pham. Invoking her constitutional rights, Zavala refused to answer questions and requested legal counsel. SAPD nonetheless sent an undercover cop into her cell to trick her into talking. The tactic alarms Reed, but Brian Gurwitz—a former OC prosecutor now in private practice—says California courts allow cops to deceive arrestees. “The public may be startled to learn that Miranda protections don’t apply when someone thinks he or she is talking to a fellow inmate. Until the arraignment, the police can ignore the suspect’s refusal to speak to them by using a fake inmate to ask questions.”

But there’s no doubt arraigned defendants are shielded from such duplicity, according to Sanders, who says he discovered prosecutors violated this protection while studying thousands of pages of documents and listening to hours of surreptitious jail recordings prosecutors strenuously fought to keep secret but ultimately surrendered after a judge ordered their release.

“The court-ordered discovery reveals investigatory and discovery practices by [prosecutors] that are rooted in deception and concealment; an unchecked and lawless custodial informant program overseen by the Orange County district attorney’s office (OCDA); and a string of prosecutions which confirm a culture that confuses winning with justice—prosecutions marked by repeated and stunning Brady violations, suborned perjury and a myriad of other misconduct,” Sanders told Superior Court Judge Thomas M. Goethals. “Scary stuff is going on in Orange County courthouses.”

(In the Brady case, the U.S. Supreme Court ruled it is unlawful for prosecutors to hide evidence favorable to a defendant.)

Sanders singled out Dan Wagner, head of the DA’s homicide unit and the prosecutor in the Dekraai case, for “terribly troubling and unethical” conduct. He says in his motion that Wagner actively engaged in plots to encourage Dekraai to unwittingly reveal defense strategies for the upcoming March 24 trial, managed document hiding, shielded notoriously unreliable informants from scrutiny, and helped to craft the false story that these informants acted without government prodding or enticements.

Wagner denies any wrongdoing and has contemptuously labeled the accusations as scandalous.

Matt Murphy, Wagner’s DA colleague who is handling the Wozniak case, also took issue with Sanders’ complaints that the OCDA used the informant known as “Inmate F”—a despicable Mexican Mafia, career criminal—to trick that defendant into talking. Murphy equally denies a role by his office in an MSNBC Lock Up broadcast that featured Wozniak speaking confidently in his cell without the knowledge of Sanders. It wasn’t his fault the public defender lacked “client control” and that Wozniak said “a bunch of stupid stuff,” the prosecutor said.

On Feb. 14, in front of Superior Court Judge James A. Stotler, Murphy declared there’s not “a scintilla” of evidence he participated in either controversy, and he prodded the public defender to prove his accusations. “Today’s the day to put up or shut up,” said a seething Murphy. “I didn’t talk to [MSNBC] before, during or after [their broadcast].”

Sanders called the prosecutor’s adamant denials “histrionics” and said he was ready to defend the content of his motion, a document with 20,000 pages of exhibits. But Stotler—who cringes when legal battles turn rancorous—declined Murphy’s request to settle the dispute during that pretrial hearing. “This issue isn’t on the calendar for today,” he reasoned.

As a remedy for the OCDA’s alleged “outrageous government conduct,” Sanders wants Wagner and Murphy barred from seeking the death penalty in either of his cases. Or, he wants what he sees as a more trustworthy California Attorney General’s office to replace the pair. His cause took bigger steps inside Goethals’ court. That judge, a former defense attorney and homicide prosecutor, said transparency and ethics are critical to the criminal-justice system. He unsealed the public defender’s brief that for a week had been blocked from public viewing at the request of Wagner.

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Sheriff Sandra Hutchens’ Plan to Monitor Non-violent Felons Gets the Silent Treatment

By Matt Coker
OCWeekly

Orange County Bail Bond Store

A plan by Orange County Sheriff Sandra Hutchens to relieve jail overcrowding by sending some felons home with electronic monitoring devices received a lack of support from the county Board of Supervisors this week. The sheriff’s department, which already uses home monitoring for some misdemeanor offenders, hopes to do the same with some non-violent felons.

Supervisor John Moorlach made the motion Tuesday to allow such a strategy, saying he believed Hutchens and the chief of probation would use their discretion when it came to such releases to a degree residents would expect. But Moorlach’s motion died for a lack of a second, although Board of Supervisors Chairman Shawn Nelson … ahem … boldly indicated he would have voted yes if someone else seconded the motion.

So, perhaps the idea will come back before the board. After all, with Moorlach locked in and Nelson willing to go along as long as he can hide behind a second supervisor, the lukewarm words of Supervisor Pat Bates might indicate a slight opening: “I think there might be other alternatives. … But I will certainly keep an open mind as we move forward.”

Looking at a state law ordering less-congested jails–and without the flexibility offered under the electronic monitoring proposal–Hutchens has indicated she may have to pull out of a deal with the federal government to rent bunks to Immigration and Customs Enforcement. That deal brings the county $20 million to $30 million annually, according to her department.

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Jury Begins Kelly Thomas Deliberations; DA Calls Police Violence “Unconscionable”

By R. Scott Moxley (OCWeekly)

Santa Ana Legal News & Articles

Orange County’s suburban juries are often dominated by unswerving, pro-cop biases, so District Attorney Tony Rackauckas had to be careful today when he asked a panel of eight women and four men to use “common sense” and hold two Fullerton police officers criminally liable for the 2011 beating death of Kelly Thomas.
“We have great law enforcement in Orange County,” Rackauckas said in his closing argument before the jury began deliberations around lunchtime. “This case was put together by good police officers. So this is not an indictment of the Fullerton Police Department or police departments [in the county].”

This case is only about the “unconscionable” treatment of Thomas by charged officers Manuel Ramos and Jay Cicinelli, the conservative Republican DA explained.

In July 2011, a group of cops savagely beat Thomas while pondering whether to arrest him for possession of stolen property after the 37-year-old, unarmed, homeless and schizophrenic man took several pieces of valueless, discarded mail from a trash can at the Fullerton Transportation Center.

An obnoxious Ramos initiated contact with the suspect, sassed him, antagonized him, and then, in a move the county’s top prosecutor calls criminal, declared his fists were going to “fuck you up.”

Rackauckas told jurors that “only a defense lawyer could make up” Barnett’s rationale that nobody would consider the officer’s statement as a looming threat of excessive force.

Thomas’ battered, bloody body didn’t look human when the cops finished punching, kicking, stomping, kneeing and firing Taser darts at him.

John Barnett and Michael Schwartz, defense lawyers for Ramos and Cicinelli, respectively, insist that Rackauckas and four doctors–all of whom independently testified the cause of Thomas’ death was the severe police beating that denied him critical oxygen–are engaged in an undefined conspiracy to frame their clients.
Rackauckas told jurors that if there was any conspiracy it was among Fullerton cops Stephen Rubio and Kevin Craig, who shamelessly testified for the defense that they couldn’t see any misguided police conduct during the relentless, seven-minute beating–never mind that the department fired Ramos and Cicinelli in the wake of the killing.

Adding to the craziness, both veteran lawyers adopted angry poses and asserted there is “no evidence” tying the beating to the death that followed.

Rackauckas labeled the defense’s trial strategy that espoused seven excuses designed to shield the now-fired cops from accountability as “straw man” arguments and “nonsense.”

For example, Barnett and Schwartz asserted the fully armed cops needed to pummel the 160-pound Thomas because they feared his supernatural strength and the officers should not be expected to pay attention to the victim’s repeated complaints about a dwindling supply of oxygen.

Schwartz portrayed Thomas–who never swung a single punch—as giving the group of cops “the fight of their lives,” but the officers emerged with only tiny, boo-boo scratches.
Apparently willing to simultaneously assert contradictory accounts, Cicinelli’s lawyer also described Thomas’ fight stance during the attack as “rigid and locked and trying not to move.”

And all the horrifically gruesome wounds to Thomas?

Schwartz boldly told the jury those injuries could have been caused not by the cops, but “from just rolling around in the street.”

Though his client bragged to fellow cops after the beating that he’d “smashed” Thomas’ face “to hell,” Schwartz provided a dismissive view of the wounds.

“Yeah, [Thomas] got some bruises,” he argued. “Yeah, he’s got some cuts.”

Said Rackauckas, “Some of the things the defense said were pretty ridiculous.”
Jurors are now in their first few hours of deliberations inside Superior Court Judge William R. Froeberg’s 10th-floor Santa Ana courtroom.

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Fake Cops and Utility Reps in Irvine, Anaheim and Santa Ana Have Something in Common

By Matt Coker (OC Weekly)

Irvine Police detectives are dealing with an unusual case: a kidnapping where two men impersonated police officers and threatened a local resident with arrest if he did not pay back taxes via a Green Dot MoneyPak cash card.
Meanwhile, Anaheim Police are dealing with scammers posing as Public Utilities representatives also seeking Green Dot MoneyPak payments.

Over in Santa Ana, cops are looking at fake Southern California Edison reps seeking payment by … aw, hell, do we have to spell it out for you, people?

Now, real Irvine cops are looking not only for the phony baloneys but witnesses and other victims of similar crimes.

This all began there around 8 a.m. Thursday, according to Irvine Police Lt. Julia Engen, the department spokeswoman. That’s when the fellow received a phone call from someone saying that he owed the U.S. Attorney General’s office money in back taxes. He was instructed to go to a local store to purchase a Green Dot MoneyPack cash card in the amount of the back taxes owed.

But the fellow refused, prompting the caller to threaten him with arrest by a law enforcement agency. Sure enough, a black Ford Crown Victoria with tinted windows pulled up to the man’s Irvine residence a short time later, Engen said.

Two men got out of the Crown Vic and approached the man, who was by now standing in front of his residence. After identifying themselves as law enforcement officials, they placed the man in the back of their “unit” and threatened him with arrest. He was only released when he agreed to go purchase a Green Dot MoneyPak, according to Engen.

Both fake cops were described as Middle Eastern. One was 45 to 50, 6-foot-2, with a medium build, black curly hair, a mustache and a dark complexion. He was wearing a black suit, white shirt and a black tie. The second was about 50, 5-foot-10 with a medium build, short brown hair with some gray and wearing a black suit, white shirt and a black tie.

The reservoir dogs’ vehicle was a 2000 Ford Crown Victoria, black, with no exterior light bar, tinted windows and an interior safety cage.

Irvine Police detectives are looking for additional witnesses to this crime or anyone who believes they were stung by these guys also. Call Detective John Sanders at 949.724.7244 or email him at jsanders@cityofirvine.org.

In Anaheim, public utilities customers have been getting calls from scammers impersonating city employees requesting over-the-phone payments via Green Dot MoneyPak cards purchased at local stores.

Using “spoofing software” that falsely displays Anaheim Public Utilities’ name and phone number on caller ID systems, the impersonators ask customers for money cards in a specific dollar amount and then ask them to dictate into the phone the MoneyPak number.

The scam has prompted the city to inform residents it does not solicit payments by MoneyPak numbers.

“As a reminder, Anaheim Public Utilities representatives will never make unsolicited calls to customers to collect utility payments, nor will staff visit residents to solicit payment,” reads the alert. “Customers can pay their utility bills by any of the following methods:

  • By mail to Anaheim Public Utilities, P.O. Box 3222, Anaheim, CA 92803-3222
  • In-person at Anaheim West Tower, 201 S. Anaheim Blvd., First Floor, Anaheim
  • Through the authorized and automated phone system, by calling 714-765-3300
  • Securely online at www.anaheim.net/utilities

“To verify if a call or visitor to your home is that of a City of Anaheim employee, or if you suspect fraud, please call 714-765-3300.”

Santa Ana Police Cpl. Anthony Bertagna, that department’s spokesman, says scammers phone Edison customers to say their accounts are delinquent, threatening to cut their electrical service unless payments are immediately made with Green Dot Moneypak cards.

Business owners have been swindled out of more than $2,600 and at least six Santa Ana residents have been contacted by the scammers in the past couple months, according to Bertagna.

Working with SoCal Edison, Santa Ana cops have so far determined the calls seem to be originating on the East Coast, according to Bertagna, who adds investigators suspect the same baddies stole more than $30,000 from Santa Ana businesses last March.

Santa Ana residents and merchants are being warned against giving out personal information over the phone. Anyone who believes they are a victim of these scammers is instructed to call 1.855.TIPOCCS.

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DA Tony Rackauckas Battles Cops In Court & Opens Second Front Against News Media

By R. Scott Moxley
OC Weekly

rackauckaspoolfight-thumb-550x345

Tony Rackauckas’ Orange County District Attorney’s office didn’t just battle two feisty defense lawyers yesterday during opening statements in a case against two former Fullerton cops accused of wrongly beating a homeless man to death in 2011.
Behind the scenes, Rackauckas’ office clashed with The Radio & Television News Association of Southern California (RTNA) over prosecutors wanting copies of the courtroom recordings a KCBS/KCAL cameraman made of opening statements for members of the media pool covering what is being called the Kelly Thomas murder trial.

During the lunch break, KFI-AM 640 news reporter Steve Gregory, an RTNA board member, saw someone he didn’t recognize downloading media pool copies of opening statements by Rackauckas as well as John Barnett, who represents one of the accused ex-Fullerton cops.

Chris Kim identified himself as an assistant in the DA’s media office.

“You must be a bonafide member of the media pool [to get access to the broadcast news feed],” Gregory told the Weekly later.

Gregory, who said he was acting in his RTNA role and not as a KFI employee, ordered Kim to stop.

“The DA isn’t permitted to plug into our media feed,” Gregory said. “That starts to blur the lines between media organizations and a government law enforcement agency. The feed is proprietary to us, the media. It’s a big no-no for them to try taking the media feed.”

Gregory’s stance prompted the ire of unamused DA Chief of Staff Susan Kang Schroeder, who stated she had hoped to put opening statements by Rackauckas as well as the two defense lawyers online for the public to see.

In a meeting held without a news organization representative present inside Orange County Superior Court Judge William R. Froeberg’s chambers, Rackauckas informed the judge about the dispute.

Froeberg, who’d previously granted media pool requests to film opening statements, closing statements, verdict and sentencing, then ordered both the TV pool cameraman and the print pool cameraman from The Orange County Register out of the courtroom before Michael Schwartz, who represents accused ex-cop Manuel Ramos, gave his opening.

The dispute resulted in near universal frustration and Schroeder is ready to blame.

“It’s Steve Gregory’s fault,” she said. “Steve Gregory screwed everyone with this stunt. It’s bizarre. The broadcast news feed should be public. It’s a recording of what happens in a public courtroom.”

Rick Terrell, executive director at RTNA, views the DA’s move as “just despicable” and “bullying.”

Terrell said he’s never seen a similar contest.

“The judge has no right to argue that the media has to cooperate with a DA or defense lawyers by giving them copies [of the pool feed],” he said.

Schroeder called the RTNA position “crap” and “petty.”

“It’s pretty ridiculous that they want to block the public from seeing everything that happened inside the courtroom,” she said, noting that the DA’s office now will likely only post Rackauckas’ opening statement on its website as early as today.

Terrell says his organization is considering writing a protest letter to the DA and working with court officials to prevent future confrontations.

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Is Another Gang Injunction in the Works for Santa Ana?

By Gabriel San Roman
OC Weekly

townsend_injunction

Last night, Santa Ana Police Department (SAPD) Commander Tammy Franks and Assistant District Attorney Tracy Rinauro talked to a community gathering about the city’s sole gang injunction: the one affecting Santa Nita street gang, enacted in 2006. But residents and community groups didn’t gather to debate the merits of that injunction. Instead, they spoke out against rumors that a new one is being planned against the Townsend Street gang.
Back in late August, they claim, SAPD gang unit members said as much during a police presentation at the KidWorks center in the neighborhood.

The rumored area would be enclosed by West 1st Street, South Raitt Street, West McFadden Avenue and South Sullivan Street. The “safety zone” would also capture blocks claimed by the rival West Myrtle Street gang.

Vanessa Cerda, a neighborhood resident, took to public comments to caution against any such plans. “No one has notified me or my community if we wanted a gang injunction,” she said. “I created a petition and I gathered signatures against [it].” Cerda tells the Weekly that her partner is a former gang member that has left the life behind but still faces harassment by law enforcement. “It will only make it worse,” she says if an injunction is implemented.

Her viewpoints were echoed by grassroots organizations like Chican@s Unidos and Boys and Men of Color that stressed civil liberty concerns citing the recent ruling by the Ninth Circuit against the OVC gang injunction in Orange and promoted preventative programs for youth as a viable alternative. If police are building a case, residents and groups are building community, holding their first outdoor family movie night Friday on Townsend Street from 5 p.m.-7 p.m. with free parking at nearby Jerome Park.

Deep into the public safety meeting, city councilman Roman Reyna raised a key question regarding a possible injunction. “Have we started to collect data in [the] Townsend area to move in this particular direction?” Santa Ana Interim Police Chief Carlos Rojas offered a response. “It’s better not to speak on any specific issue,” he said citing concerns of breaching confidentiality, “but we are constantly looking at data related to all our hot spot areas.”

Later on, the KidWorks presentation was brought up once more from the audience. “I have not authorized anybody from my staff to talk about any gang injunction,” Rojas said. He then turned it over to Commander Franks who heads the gang unit.

“I actually reviewed the presentations,” she said of her officers that participated. “The [residents] were advised that [injunctions are] just one tool that can be used, not that we are intending to,” Franks said, though noting that she wasn’t present at the center.

“If there are gang injunctions to be done here in the city,” Rojas added, “I will be at that community meeting.” He apologized for any misinformation that may have been communicated and said that his phone line is open.

“The council members seemed very willing to learn and it showed that this meeting was useful,” Carolyn Torres of Chican@s Unidos said after it wrapped up. Having called Chief Rojas for clarification prior to last night, she remains unconvinced that there are no active plans for a gang injunction on Townsend.

“They’re building a case,” she adds. “The next step [for us] is to keep the fact finding mission going.”

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