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Case No.: 12ZF0137
REPLY BRIEF TOPROSECUTION’ S RESPONSETO DEFENDANT’S MOTION TODISMISS THE DEATHPENALTY
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FRANK OSPINO - DEPT. C-30Public Defender PRE-TRIAL: 12/12/14OranneCountvTRAiYR. LISAGEState Bar No. 182414 “
Assistant Public DefenderSCOTT SANDERS SUpERIOAssistant Public Defender c[ ‘°Ni1State Bar No. 159406 La TALJij
14 Civic Center Plaza-v,.Santa Ana, California 92701 1 q,,j
ALANCTelephone: (714) 834-2144 Ck,rlc cftii CoFax: (714) 834-2729 BY
•— HOyAttorneysfor Defendant
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF ORANGE, CENTRAL JUSTICE CENTER
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PEOPLE OF THE STATE OF CALIFORNIA,
PlaintffV.
DANIEL PATRICK WOZNIAK,
Defendant.
INTRODUCTION
The prosecution’s response to the defense motion to dismiss the death penalty evades
the topic of the Orange County District Attorney’s Office and Orange County law
enforcement’s decades-long history of obtaining convictions through the unconstitutional
use of informants and the unconstitutional withholding of evidence from the defense.
Rather than confront the legal implications of this history in a forthright manner, it
misstates facts and law, distorts reality, attacks defense counsel, and attempts to redirect
attention to the alleged guilt of the myriad of defendants who have been adversely affected
over the years by the unlawful practices of the government. Whether the defendants
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Defense Reply Brief
1 discussed in the motion are guilty or not, and whether they deserved death sentences or not
2 is not, under our form of government, for the prosecution and law enforcement to decide. It
3 is for juries to decide, and juries who are given all of the relevant facts, not false narratives
4 promulgated by means of deception, evasions, and cover-ups. The very fact that, even at
5 this late date, and even in the face of the voluminous evidence of malfeasance, the
6 prosecution would rather deny any mistakes or wrongdoing, distorting reality to do so, than
7 to honestly acknowledge the facts and debate their legal ramifications is the greatest
8 possible evidence that it has no intention of ensuring that Wozniak is accorded a fair trial.
9 The party that ignores the demonstrable proof that evidence was withheld and
10 Constitutional strictures ignored in case after case over the last three decades, is not one to
be trusted when it claims to have “scrupulously honored the defendant’s Constitutional
12 rights.” At some point, actions have to speak louder than words. The defense submits that
13 this is that point, and that the prosecution’s actions can give the defendant, as well as the
14 public it purports to serve, no assurance that in fact he will receive the evidence to which he
15 is entitled, or that the prosecution will not benefit from unlawful acts.
16 At the outset, it must be noted that the prosecution, despite multiple filings on the
17 topic, fails to understand the defense argument in the case at bar. The defense argument is
18 twofold: (1) The Eighth Amendment requires that any imposition of the death penalty be
19 predicated upon a reliable process that gives some modicum of assurance that the result is
20 not arbitrary or capricious.’ That process does not exist in Orange County, and thus the
21 death penalty cannot be imposed on Wozniak; (2) The conduct of the prosecution team in
22 Wozniak’s case has irreparably violated his due process rights, and hence it cannot seek his
23death. Thus, the prosecution’s arguments that “the defendant has no standing to assert the
24rights of others” (DA Response to Defense Motion to Dismiss the Death Penalty [herein
25after “DA Response”], pp. 26-27), that there is no due process violation if a defendant
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271 The prosecution assets that the “defense cites no authority in support this position [sic].”The prosecution must have missed pages 87 to 98 in the defense motion to dismiss the death
28 penalty.
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Defimse Reply Brief
1 pleads guilty after the prosecution has knowingly withheld exculpatory evidence (DA
2 Response, p. 28), and that “there is a paramount public interest in protecting the identity of
3 informants” (DA Response, pp. 28-30) are all red herrings, and one has to wonder why they
4 were raised. The defense is not seeking to assert the rights of any defendants discussed in
5 the motion (one of whom has already been executed by the State). Whether there is a
6 cognizable due process claim on the part of defendants who have pled guilty is irrelevant to
7 the issue of whether Massiah and Brady were violated in those cases2,and, as the
8 prosecution presumably knows, the law provides mechanisms to protect informants when
needed. As the prosecution is not asserting that any of the Brady violations discussed in the
10 defense motion were due to a perceived need to protect an informant, that portion of the
motion is obviously completely immaterial to the analysis.
12 What is almost as dismaying as the prosecution’s cavalier treatment of the evidence
13 adduced in support of the defense motion is its erroneously narrow view of its
14 Constitutional duty to provide evidence to the defense. As detailed in the defense motion to
15 dismiss the death penalty, that duty is predicated on the government’s responsibility to be
16 fair as well as zealous. In this county, however, the prosecution seems to perceive its
17 responsibility as being the evasion of that duty to the extent possible. Thus, it asserts,
18 wrongly, that it is not required to turn over exculpatory evidence prior to trial. Even more
19 significantly for purposes of this motion, it believes that it has no responsibility to provide
20 evidence that is relevant to mitigation in the penalty phase. This assertion alone (which, as
21 demonstrated infra, is just plain wrong) demonstrates that the People do not see a need to
22 change the practices of the past decades in order to provide Wozniak with evidence relevant
23to penalty.
24In short, the prosecution’s response to the defense motion demonstrates all of the
25tricks which have been recognized by courts and commentators as the common methods of
26getting away with violating the Constitutional rights of criminal defendants — deny in the
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282 And, as will be discussed infra, to the extent that the People are asserting that they have noConstitutional discovery obligations prior to 30 days before trial, they are wrong.
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Defense Reply Brief
1 face of any and all evidence that any Constitutional violation occurred, distort the law in an
2 effort to support that claim, and then, when irrevocably cornered, claim that the defendant’s
3 manifest guilt means that the violation should be ignored. Enough men’s lives have been
4 put in jeopardy, ruined, and forfeited by the pattern of conduct engaged in by the District
5 Attorney’s Office and law enforcement since the 1980s and continuing up to, and including,
6 the prosecution’s response in the case at bar. It should, and must, be stopped now. The
7 defense’s motion to dismiss the death penalty should be granted.
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9 THE PROSECUTION HAS THE CONSTITUTIONAL OBLIGATION TO
10 DISCOVER EVIDENCE TO THE DEFENSE THAT IT KNOWS TO BE
11 MITIGATING AS TO PENALTY
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13 The prosecution is under the mistaken impression that it has no obligation to provide
14 evidence to the defense in its possession that may be mitigating on the issue of punishment.
15 This position, of course, is contradicted by Brady v. Maryland(1963) 373 U.S. 83 itself:
16 We now hold that the suppression by the prosecution of evidence favorable toan accused upon request violates due process where the evidence is material
17 either to guilt or punishment, irrespective of the good faith or bad faith of18 the prosecution. (supra at 87; emphasis added).3
19 Indeed, Brady itself involved the reversal of a death sentence on the ground that the20 evidence withheld from the defense by the prosecution would not have had an impact on the21 determination of the defendant’s guilt, but was relevant to his penalty. In Cone v. Bell
22 (2009) 556 U.S. 449, the defendant was tried for two murders. He presented an insanity
23 defense, arguing that he was suffering from acute methamphetamine psychosis at the time
24 of the crime. The jury rejected the defense and sentenced him to death. Subsequent
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26 The requirement that the defense request evidence before the prosecution has an
27 obligation to provide it was eliminated in subsequent Supreme Court decisions. (United
28 States v. Bagley, 473 U.S. 667, 678-683); see also People v. Verdugo, 50 Cal.4th 263, 279).
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Defense Reply Brief
1 investigation revealed that the prosecution withheld witness statements about the
2 defendant’s demeanor around the time of the crime, as well as police reports describing him
3 as a heavy drug user. The Sixth Circuit Court of Appeals held that the withheld evidence
4 would not have had an impact on the outcome of the trial. In reviewing that decision, the
5 Supreme Court held:
6 “. . . [W]e conclude that the Sixth Circuit did not err by denying habeas reliefon the ground that the suppressed evidence was immaterial to the jury’sfinding of guilt. The same cannot be said of the Court of Appeals’ summary
8 treatment of Cone’s claim that the suppressed evidence influenced the jury’ssentencing recommendation. There is a critical difference between the highstandard Cone was required to satisfy to establish insanity as a matter of
10 Tennessee law and the far lesser standard that a defendant must satisfy toqualify evidence as mitigating in a penalty hearing in a capital case. [Citation
11 omitted] As defense counsel emphasized in his brief opening statement12 during penalty phase proceedings, the jury was statutorily required to consider
whether Cone’s ‘capacity.. .to appreciate the wrongfulness of his conduct or13 to conform his conduct to the requirements of the law was substantially14 impaired as a result of mental disease or defect or intoxication which was
insufficient to establish a defense to the crime but which substantially affected15 his judgment.’ [Citation omitted] It is possible that the suppressed evidence,16 viewed cumulatively, may have persuaded the jury that Cone had a far more
serious drug problem than the prosecution was prepared to acknowledge, and17 that Cone’s drug use played a mitigating, though not exculpating, role in the18 crimes he committed. The evidence might also have rebutted the State’s
suggestion that Cone had manipulated his expert witnesses into falsely19 believing he was a drug addict when in fact he did not struggle with substance
20 abuse.” (supra, at 474-475)
21 In In re Bacigalupo (2012) 55 Cal.4th 312 the defendant was charged with killing two
22 people. The defendant told the police following his arrest that he killed the victims because
23 the Colombian Mafia threatened to kill his family if he refused. Prior to trial, the defendant
24 sought the identity of a confidential informant. After an in camera hearing, the trial court
25 held that the informant was not a material witness on the issue of guilt. The defendant was
26 subsequently convicted and sentenced to death. In habeas proceedings, it was revealed that
27 the informant did have information, known to the prosecutor and law enforcement but
28 hidden from the defense, which supported the defendant’s claim that he committed the
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Defense Reply Brief
1 murders under duress. Based on these facts, the California Supreme Court found a Brady
2 violation and reversed the death sentence:
3 “Petitioner has established through evidence that he presented at the reference
4hearing and that the referee found to be credible that the prosecution violatedits disclosure obligations under Brady [Citation omitted] when it withheld
5 from the defense the above discussed information it had obtained from GaleKesselman. As the referee found, that information would have supported
6 petitioner’s claim to have acted under Colombian Mafia death threats in his7 killing of the Guerrero brothers. Because substantial evidence supports the
referee’s determination, and it is reasonably probable that petitioner’s penalty8 phase jury would have returned a verdict of life imprisonment without parole9 had it heard the evidence withheld by the prosecution, we grant petitioner’s
10requested relief from the judgment of death.” (supra at 336)
Therefore, such blanket statements in the prosecution’s brief as “Exculpatory evidence, of
12 course, carries all necessary and appropriate discovery obligations pursuant to Brady.
13 ‘Mitigating evidence,’ however, imposes no such burden on the People are erroneous. (DA
14 Response, p. 3.)
15 The prosecution misstates the facts and the legal implications of the case on which it
16 relies for the proposition that it has no obligation to discover evidence that is material to
17 penalty. In re Steele (2004) 32 Cal.4th 682, the defendant was not charged with killing his
18 cellmate in Calipatria State Prison. (DA Response, p. 24). He was charged with the murder
19 of a young woman, after having been previously convicted of the murder of another young
20 woman. The issue in the case, which arose in the context of a post-conviction defense
21 motion for discovery made pursuant to Penal Code section 1054.9, was not whether the
22 prosecution had an obligation to collect potentially exculpatory evidence of the defendant’s
23good behavior in prison. (DA Response, p. 24). The discovery under discussion was
24comprised of Department of Corrections documents concerning the defendant’s informant
25activities during the prison term that he served for the prior murder. The defense made no
26claim that the prosecution was required to collect such information. Rather, the issue was,
27inter alia, what the prosecution’s disclosure obligations are in relation to evidence that it
28does not know is mitigating because it does not relate to the prosecution’s theory of the case
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Defense Reply Brief
1 or to aggravating evidence, such as the circumstances of the crime. As to such evidence,
2 the court held, the prosecution has no duty to be clairvoyant as to what the defense wants to
3 present in mitigation, and thus its discovery obligation does not arise unless and until the
4 defense requests the information:
5 “In this case, the prosecution had no obligation at time of trial to provide thediscovery materials petitioner seeks — evidence regarding his own behavior in
6 prison that was relevant neither to the charged crime nor to any of the7 prosecution evidence in aggravation at the penalty phase — absent a specific
defense request. However, if the defense had specifically requested the8 materials at time of trial (the record is unclear), the prosecution would have9 been obligated to provide them if it possessed them. Accordingly, we
conclude that petitioner is entitled to discovery of materials within the scope10 of the current request that petitioner does not now possess but that the11 prosecution and law enforcement authorities involved in the case currently
12possess, if any exist.” (supra, at 688).
13 Immediately after the quotation cited by the People on page 25 of the DA Response, the14 court said:
15 “The duty of disclosure exists to avoid ‘an unfair trial to the accused’ [cite] or
16 ‘to ensure that a miscarriage ofjustice does not occur’ [Citation omitted]Requiring the prosecution, on its own, to disclose information that might fit
17 some defense theory but is irrelevant to the prosecution evidence or theory of
18 the case is generally not necessary to ensure a fair trial. Because mitigation isoften” ‘in the eye of the beholder” [Citation omitted], the defense will know
19 far better than the prosecution what evidence fits its theory of the case and
20 what evidence does not. Because the defense can offer virtually anythingabout the defendant personally that it considers mitigating, virtually anything
21 regarding the defendant can be exculpatory if the defense considers it so.
22 Thus, evidence whose exculpatory nature is not obvious might becomeexculpatory whenever the defense so claims. But the duty to disclose
23 evidence cannot extend to evidence the prosecution had no reason to
24 believe the defense would consider exculpatory.” (supra, at 699-700;emphasis supplied)
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26The court went on to apply these principles to the case before it:
27“The information petitioner seeks here involves his own behavior in prison.But the prosecution’s case had nothing to do with petitioner’s prison behavior.
28 The instant charge was a murder committed after he was released from prison.
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Defense Reply Brief
1 The prosecution case in aggravation consisted entirely of crimes committed
2before he was in prison. Prison officials did not investigate or help prosecuteany of these crimes. Thus, the prosecution was generally not responsible for
3 information prison officials possessed that might help the defense. [Citation
4omitted]” (p. 701)
5 Steele therefore stands for the somewhat unremarkable proposition that the prosecution has
6 no Brady obligation as to evidence that it has no reason to know will be relevant to the
7 penalty trial. It does not stand for the blanket proposition that the prosecution has no Brady
8 obligation to turn over evidence that is material on the issue of penalty.
9 The prosecutor’s analytic error is evident in the title of its section on the topic of its
10 Brady duties as to penalty phase evidence. That title is “The People have no duty to gather
and discover (k) factor mitigating evidence on behalf of the defense.” (DA Response, p.
12 24). First, the defense in the case at bar has never argued that the People have an obligation
13 to gather evidence that is not already in its possession or that of law enforcement; thus, the
14 use of the term “gather” is a straw man. Second, if the People are on notice that the defense
15 is relying on any specific factor (k) evidence, and it knows it has evidence relevant to that
16 factor, then it does have an obligation to discover it. Third, there are other factors in Penal
17 Code section 190.3 that are mitigating by definition. Steele would certainly not support, for
18 example, the withholding of evidence by the prosecution that the murder was committed
19 while the defendant was under the influence of extreme emotional disturbance (factor d) or
20 under duress or the substantial domination of another person (factor g). Finally, evidence
21 that contradicts either the prosecution’s factual presentation or the prosecution’s theory of
22 the case is mitigating in the sense that it undercuts the prosecution’s argument for a death
23sentence, and must be discovered to the defense under Brady. The Constitution does not
24allow the prosecution to argue, as it has in this county, a version of events when it possesses
25evidence that contradicts that version, but which has never been revealed to the defense.
26Thus, the defense’s argument stands: the prosecution has Brady obligations in the penalty
27phase, the history of the District Attorney’s Office and the Sheriff’s Department provides
28substantial evidence that there is no way to be assured that those obligations have been or
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Defense Reply Brief
1 will be fulfilled, and therefore any death sentence resulting from the proceedings against the
2 defendant will be unreliable, arbitrary, capricious, and in violation of the Eighth
3 Amendment of the United States Constitution.
4 THE PROSECUTION HAS CONSTITUTIONAL DISCOVERY OBLIGATIONS
5 PRIOR TO PRELIMINARY HEARING
6 The prosecution asserts that the “defense has no right to impeachment evidence prior
7 to a guilty plea.” (DA Response, p. 27). It goes on to assert that this concept means that all
8 of the defendants named in the Motion to Dismiss the Death Penalty who pled guilty
9 suffered no due process violation, and that thus “[the defense] argument fails as a matter of
10 law.” (DA Response, p. 28). This conclusion wrongly assumes that (a) the cases in which
pleas were entered do not serve to prove the pattern of conduct by prosecutors and law
12 enforcement over the years; (b) that Brady evidence is synonymous with impeachment
13 evidence; (c) that it is appropriate to hide evidence of a Constitutional violation in the hopes
14 that an affected defendant will ultimately plead guilty; and (d) that there is no pre
15 preliminary hearing duty of disclosure. Once again, however, the prosecution’s seeming
16 interest in narrowing the category of evidence it must turn over to the defense, and in
17 holding on to such evidence for as long as possible, adds strength to the defense’s concern
18 about its ability and/or willingness to meet its Constitutional responsibilities in the instant
19 case.
20 In the case cited by the prosecution, U.S. v. Ruiz (2002) 536 U.S. 622, the defendant
21 sought to take advantage of an early plea program in order to get a reduction of her
22 sentence. That plea agreement contained provisions that the government had turned over
23any evidence of innocence in its possession, that it acknowledged its continuing
24responsibility to give the defense any such evidence, and that the defense waived its right to
25receive evidence impeaching any witness or supporting an affirmative defense. The
26defendant ultimately rejected the plea deal and then appealed her ultimate sentence,
27asserting that it was unconstitutional to force her to give up the right to impeachment
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Definse Reply Brief
1 evidence and to evidence supporting an affirmative defense in return for a plea. The
2 Supreme Court upheld the sentence, finding:
3 “Here, as we have just pointed out, the added value of the Ninth Circuit’s‘right’ [to impeachment information] to a defendant is often limited, for itdepends upon the defendant’s independent awareness of the Governments
5 case. And in any case, as the proposed plea agreement at issue here specifies,the Government will provide ‘any information establishing the factual
6 innocence of the defendant’ regardless. That fact, along with other guilty-7 plea safeguards [cite] diminishes the force of Ruiz’s concern that, in the
absence of impeachment information, innocent individuals, accused of crimes8 will plead guilty. [cite]. At the same time, a constitutional obligation to
9 provide impeachment information during plea bargaining, prior to entry of aguilty plea, could seriously interfere with the Government’s interest in
10 securing those guilty pleas that are factually justified, desired by defendants,and help to secure the efficient administration ofjustice.” (supra, at 631.)
12 Thus, the opinion is limited to impeachment evidence, based on the assumption that
13 impeachment evidence is of limited use to a defendant in deciding whether to enter a plea as
14 the defendant does not know at that stage how the prosecution intends to try its case. Its
15 limitation implies that the prosecution does have an obligation to provide evidence of
16 innocence prior to a defendant’s plea. This interpretation is supported by Justice Thomas’
17 concurrence in the judgment:
18 “I agree with the Court that the Constitution does not require the Government
19 to disclose either affirmative defense information or impeachmentinformation relating to informants or other witnesses before entering into a
20 binding plea agreement with a criminal defendant. The Court, however,
21 suggests that the constitutional analysis turns in some part on the ‘degree ofhelp’ such information would provide to the defendant at the plea state
22 [Citation omitted] a distinction that is neither necessary nor accurate. To the
23extent that the Court is implicitly drawing a line based on a flawedcharacterization about the usefulness of certain types of information, I can
24 only concur in the judgment. The principle supporting Brady was ‘avoidance
25of an unfair trial to the accused.’ [Citation omitted] That concern is notimplicated at the plea stage regardless.” (supra, at 633-634.)
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27Moreover, Ruiz was a direct appeal in a Federal case. In California, it is well
28recognized that criminal defendants have a due process right to exculpatory evidence prior
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Defense Reply Brief
1 to preliminary hearing (Bridgeforth v. Superior Court (2013) 214 Cal.App.4th 1074: Stanton
2 v. Superior Court (1987) 193 Cal.App.3d 265). Thus, to make a blanket assertion that
3 criminal defendants are not entitled to Brady information prior to trial ignores their rights at
4 preliminary hearing, which includes the right to relevant impeaching information.
5 The defense cited a number of cases in its brief in order to establish patterns of
6 conduct by Orange County prosecutors and law enforcement which include the purposeful
7 violation of the rights of criminal defendants, the deceptive use of informants, the
8 withholding of evidence from the defense, and the construction of false narratives for trial
9 juries. The response by the prosecution is to assert that it has a narrow duty to divulge
10 exculpatory or mitigating evidence, and that it need not reveal such information until the
11 statutorily-created last moment. This position, regardless of its legal viability (which, as
12 has been argued, is almost nonexistent) is troubling from a moral perspective. The
13 government is given great power over the lives of the people. In return, it is expected to
14 exercise that power in accordance with both the Constitution and common precepts of
15 justice. At minimum, that means that evidence refuting the prosecution case, or of
16 innocence, or of mitigation of penalty, should be provided to the defense at the earliest
17 feasible time so that the defense can investigate and develop it as completely as possible,
18 and present it to the jury, which has the ultimate responsibility over the life of the
19 defendant. This ensures that the jury exercises its responsibility based on all of the relevant
20 facts. A prosecutorial agency that has no interest in serving justice in this fashion is not one
21 that can be relied upon to fulfill the role it must play if the process is to have the reliability
22 required by the Eighth Amendment before death can be imposed.
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Defense Reply Brief
1 INDIVIDUALIZED CASE ANALYSIS
2 In this section, Defendant Wozniak addresses the prosecution’s response to its
3 analysis of cases within the motion. The response will be delivered in the order chosen by
4 the prosecution. It is noteworthy that the prosecution, which criticizes the “piecemeal
5 historical representations” in a 754 page document accompanied by more than 20,000 pages
6 of supporting exhibits, has chosen not to attach a single document or declaration to rebut the
7 allegations.
8 It is also interesting that despite the uniformly “ridiculous, one sided, and frivolous”
9 allegations purportedly made by the defense, the prosecution has chosen to address just”...
10 some of the defendant’s claims to illustrate” this point— while leaving out entirely other
claims and cases from its analysis. (DA Response, page 26, emphasis added.)
12 For instance, conspicuously missing is an examination of the case of People v.
13 Leonel Vega; a case that offers little to advance the prosecution’s depiction of the defense.
14 In that case, of course, the OCDA obtained an informant-aided LWOP conviction (since
15 vacated) on the back of extraordinary evidence concealment. The misconduct in that case
16 was marked by a) the disclosure of only 4 pages of more than 200 pages of informant notes,
17 b) the concealment of a letter documenting the plan to place the informant and his target
18 together in disciplinary isolation in order to violate Massiah (and authorized by the second
19 in command at the OCSD), but only obtained received in this case after the defense
20 received an adverse ruling Dekraai, and c) undisclosed recordings between the informant
21 and Vega in which Vega denied his guilt. Does the prosecution actually view the victims in
22 this case as an unfairly maligned prosecutor4and members of law enibrcement? Does the
23 prosecution believe the defendant unfairly deprived an investigator of a deserved “benefit of
24the doubt” that non-disclosure was inadvertent, when the investigator promised Oscar
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_______________________
26 Erik Petersen, the prosecutor in Vega, and the next case discussed, People v. Isaac27 Palacios, is no longer employed by the OCDA. Though they are unlikely yet to admit his
significant misconduct in multiple cases, the courage of a prosecutor’s office is measured28 by the willingness to stand against one of their own when he is still one of their own.
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Defense Reply Brief
1 Moriel that no one would ever see the informant agreement he signed—and then kept that
2 promise as Moriel testified repeatedly in trials in the years that followed? If the
3 prosecution’s answer is in the affirmative—and everything written and stated publicly to
4 date indicates that is exactly their perspective—then this oilers yet more compelling
5 evidence that no rational hope exists for discovery compliance and accountability in the
6 future. In their response, the prosecution takes the far easier route: silence.
7 Of course, the prosecution also omits any discussion ofPeople v. Palacios, another
8 case marked by exceptional discovery concealment. The omission is understandable if the
9 prosecution wanted to protect its premise: one of the office’s supervising attorneys stated
10 that one of the reasons that Palacios was released on probation and allowed to plead to a
single count of second degree murder, when he was facing special circumstances murder
12 and life without possibility of parole was that, “We didn’t want to go through another one
13 of those (Dekraai) hearings.” (Saavedra, Here is Why an Admitted Killer Walked Free, O.C.
14 Register (Oct. 22, 2014).) The reason they DA Response does not discuss this case is
15 because, again, the prosecutors and members of law enforcement purposefully hid evidence.
16 Once again, a tiny fraction of the informant’s notes were disclosed, and somehow neither
17 Palacios, nor the other defendants in cases in which the informant testified, received the
18 recording in which informant Moriel indicated his memory could dramatically improve if
19 he obtained the help he wanted on his own case. Ten years after he was arrested, the
20 answer is pending. But does the prosecution want the benefit of the doubt extended here as
21 well that the non-disclosure was an accident—even though one of the investigators was the
22 one same one who promised to keep the informant agreement in his desk?
23As discussed earlier, the prosecution’s point of emphasis is that in each and every
24one of these cases they have chosen to discuss is that the defendants deserved their
25conviction and/or their death sentence, regardless of whether discovery was appropriately
26disclosed. The approach corroborates perhaps most important point of the motion to
27dismiss: the OCDA believes laws designed to ensure due process—namely laws that
28require discovery compliance—are less important in cases where they view the evidence
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Deiènse Reply Brief
1 compellingly supports guilt and/or death. Of course, prosecutors in the OCDA would only
2 pursue cases where they “believe” evidence warrants a verdict of guilt or death. Therefore,
3 continuing along this circular path, discovery compliance in OCDA cases is a less
4 compelling value than ensuring convictions and death verdicts. Taking into account 1) the
5 view of the prosecution in the instant matter that Wozniak is guilty and absolutely deserves
6 the death penalty, and 2) the perpetual and persistent minimization of the discovery
7 violations discussed in this motion, it would be speculative to conclude that there would be
8 full discovery of evidence helpful to Defendant Wozniak that may erode the prosecution’s
9 chances at either phase of this case.
10 People v. Payton
11 The absolute unwillingness of the prosecution to actually respond to issues of
12 informant concealment is illustrated in the very first case carefully selected to purportedly
13 illustrate defendant’s “ridiculous, one sided, and frivolous” arguments. In its brief, the
14 defense analyzes in detail information indicating that former prosecutor Michael Jacobs
15 concealed significant informant evidence from the defense, and the existence of a “wink
16 and a nod” agreement on the outcome of the informant’s case once he testified for the
17 prosecution. The motion also addresses Jacobs’ claims that the veteran prosecutor
18 remained unaware of the existence of the Orange County Informant Index (OCII) for the
19 first two decades of his prosecutorial career.5 (Jacobs did not turn over helpful OCII entries
20 to the defense in either Payton or Thompson, as will be discussed herein.)
21 The Response commits not a single word to addressing these issues, and instead
22 points to evidence that Payton is a “monster.” The seriousness of the crime is inarguable,
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27 Defendant Wozniak will address herein additional recently obtained information relevantto the action of Jacobs and the OCDA in Payton.28
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Defense Reply Brief
1 but that fact neither answers nor justifies significant discovery violations, and the persistent
2 refusal to address these allegations head on further strengthens the articulated concerns.6
3 People v. Thompson
4 The discussion in the DA Response of the miscarriage ofjustice that was the Thomas
5 Thompson case is riddled with misstatements. These include:
6 1. “In Thompson, the defense claimed ‘[i]n the quest to obtain a conviction and death
7 verdict against Thompson — a defendant with no prior criminal history — and a murder
8 conviction against his co-defendant David Leitch, former Assistant DA Jacobs employed
9 wholly inconsistent theories ofculpability (DJVL p. 38) This is based on the use ofdifferent
10 informants at the preliminary hearing and trial, and the claim that impeachment evidence
was not discovered.” (DA Response pp. 31-32).
12 This statement is based on the fact that at the preliminary hearing, relying partly on
13 informants, the prosecution argued that Ginger Fleischli was killed by Leitch and
14 Thompson at Leitch’s behest because Leitch was afraid that she would interfere with his
15 efforts to reunite with his wife. At Thompson’s trial, relying on different informants, the
16 prosecution argued that Thompson killed Fleischli to cover up his rape of her (the alleged
17 rape being the circumstance that made the crime death-eligible.) Finally, in the Leitch trial,
18 the prosecution used Thompson’s defense witnesses to argue that Leitch killed Fleischli
19 because he was afraid that she would interfere with his efforts to reunite with his wife. The
20 prosecution in its response never discusses the fact that the Jacobs’s argument was based
21 solely on the fact that what made Thompson eligible for the death penalty, whether the
22
23
246 The failure to address any of the critical issues is also amplified by the odd effort to focuson a district court ruling on Jacobs’ misconduct at closing argument that was subsequently25 reversed. The brief states that “[tjhe defense refers to the ruling of the district court, but
26 this ruling was overturned by the 9th Circuit in 2011.” (DA Response, page 31.) TheMotion to Dismiss states this exact history with clarity—and never suggests that original27 reversal was related to informant misconduct. (See Motion to Dismiss, p. 110)
28
15
Defimse Reply Brief
1 murder was committed in the commission of a rape, was contradictory to the argument that
2 it used to convict Leitch.
3 It is not surprising that the prosecution, in dealing with the Thompson case, does not
4 address the fact that Deputy District Attorney Jacobs told the Thompson jury one story and
5 the Leitch jury another, inconsistent, one. First of all, it is hardly consistent with the notion
6 that the prosecution is on the side of truth when it asks two different juries to believe
7 beyond a reasonable doubt two different versions of the same facts. Second, the California
8 Supreme Court has soundly rejected the use of such tactics, in a case that was decided too
9 late to save Thompson’s life:
10 “For reasons explained below, we conclude that fundamental fairness doesnot permit the People, without a good faith justification, to attribute to two
11 defendants, in separate trials, a criminal act only one defendant could have12 committed. By doing so, the state necessarily urges conviction or an increase
in culpability in one of the cases on a false factual basis, a result inconsistent13 with the goal of the criminal trial as a search for truth. At least where, as in14 Sakarias’s case, the change in theories between the two trials is achieved
partly through deliberate manipulation of the evidence put before the jury, the15 use of such inconsistent and irreconcilable theories impermissibly undermine16 the reliability of the convictions or sentences thereby obtained. In short, in
the absence of a good faith justification, ‘[c]ausing two defendants to be17 sentenced to death by presenting inconsistent arguments in separate18 proceedings.. .undermines the fairness of the judicial process and may
precipitate inappropriate results.’ [Citation omitted]” (In re Sakarias (2005)19 35 Cal.4th 140, 155-156)
20Ironically, the California Supreme Court cited the Ninth Circuit Court of Appeals decision
21in Thompson’s case — the same decision that the DA Response faults the defense for citing
22— in explaining the reasoning behind its ruling:
23“In Thompson v. Calderon (9th Cir. 1997) 120 F.3d 1045 (Thompson) reversed
24 on other grounds sub nomine Calderon v. Thompson (1998) 523 U.S. 538
25[140 L. Ed. 2d 728, 118 S. Ct. 1489), a majority of the en banc court held thatinconsistent prosecutorial theories may present a due process violation.
26 There, Leitch and Thompson were both charged with raping and ki8lling
27Ginger Fleischli. At their joint preliminary hearing and at Leitch’s trial, theprosecutor introduced and relied on evidence, including testimony by
28 jailhouse informants recounting statements by Thompson, that indicated the
16
— Defense Reply Brief
1 two defendants had acted together, killing Fleischli because she was
2interfering with Leitch’s efforts to reconcile with his ex-wife. [Citationomitted] At Thompson’s trial (held before Leitch’s), however, the same
3 prosecutor had introduced and relied upon other evidence, to the effect thatThompson alone killed Fleischli to prevent her reporting that he had rapedher. [Citation omitted] The prosecutor thus ‘asserted as the truth before
5 Thompson’s jury the story he subsequently labeled absurd and incredible inLeitch’s trial.’ [Citation omitted]. The Thompson plurality concluded that6 ‘when no new significant evidence comes to light a prosecutor cannot, in
7 order to convict two defendants at separate trials, offer inconsistent theoriesand facts regarding the same crime.’ [Citation omitted] Three of the 118 judges participating fully joined with Judge Fletcher in her opinion on this
9 point. [Citation omitted] Two more, in a concurring opinion by JudgeTashima, agreed that prosecutorial use of wholly inconsistent theories violates10 due process [Citation omitted], but believed that Thompson’s entitlement to
11 relief depended on whether he was prejudiced, which in turn required adetermination ‘which of the two inconsistent theories pursued by the
12 prosecutor represents the true facts and which is false.’ [Citation omitted]”13 (supra at 156-157).
14 The court went on to say:
15 “These courts and judges have found a prosecutor’s 180-degree change in16 theory ‘deeply troubling’ [Citation omitted], in part because taking a fbrmal
position inconsistent with the guilt or culpability of at least one convicted17 defendant, the government, through the prosecutor has cast doubt on the18 factual basis for the conviction.. . ‘The prosecutor.. .at Leitch’s trial essentially
ridiculed the theory he had used to obtain a conviction and death sentence at19 Thompson’s trial.’ [Citation omitted]. As both of two irreconcilable theories20 of guilt cannot be true, ‘inconsistent theories render convictions unreliable.’
[Citation omitted] Because it undermines the reliability of the convictions or21 sentences, the prosecution’s use of inconsistent and irreconcilable theories has22 also been criticized as inconsistent wit he principles of public prosecution and
the integrity of the criminal trial system.” (supra at 158-159).23
24The prosecution’s mischaracterization of the defense argument about Thompson may not
25serve the cause ofjustice, but it certainly serves the cause of the Orange County District
26Attorney’s Office. That it cannot, even now, acknowledge that in the Thompson case it
27used jailhouse informants to advance inconsistent narratives, one of which was clearly false,
28
17
Defense Reply Brief
1 that cost a man his life does not bode well for its willingness to follow its constitutional
2 responsibilities in Wozniak’s case.
3 2. “The defense does not articulate what this “impeachment evidence’ was or how it would
4 have impacted the trial. “ (DA Response, p. 32)
5 The prosecution conveniently ignores that the defense actually articulates what this
6 impeachment evidence was and how it would have impacted the trial on pages 240-2 52 of
7 the defense Motion to Dismiss the Death Penalty.
8 3. “On September 11, 1981, Thompson raped and murdered 20 year old Ginger Fleischli.”
9 (DA Response, p. 32.)
10 That would have been news to Leitch’s jury, as detailed in the defense’s Motion to
Dismiss the Death Penalty, and Thompson v. Calderon (9th Cir. 1997) 120 F.3d 1045
12 reversed on other grounds sub nomine Calderon v. Thompson (1998) 523 U.S. 538). One
13 can only assume that the Orange County District Attorney’s Office, as it is embracing the
14 theory that Thomas Thompson killed Ginger Fleischli after or during his rape of her, is
15 working very hard for the release of David Leitch, now in his 34thi year of incarceration
16 pursuant to his conviction for second-degree murder based on the theory that he killed Ms.
17 Fleischli for his own personal reasons. (See California Department of Corrections inmate
18 locator http://inmatelocator.cdcr.ca.gov/search.aspx, which shows Mr. Leitch is presently
19 housed at Avenal State Prison).
20 3. “Despite the defense claims, the evidence against Thompson was overwhelming.” (DA
21 Response, p. 31.)
22 Not on the issue of rape it wasn’t, which, again, is why the prosecution was able to
23get a conviction of Leitch. There was a great deal of evidence that the defendant had
24involvement either in her murder, or in the cover-up of her murder, and there was evidence
25that he had had sex with her before her death. However, there was no external evidence of
26rape. The evidence of rape was primarily the testimony ofjailhouse informants who said
27that Thompson admitted to killing Fleischli to cover up his rape of her. (See, generally,
28People v. Thompson (1988) 45 Cal.3d 86; “As the prosecutor himself stated in his closing
18
Defense Reply Brief
1 argument, Fink and Del Frate’s testimony provided the dispositive evidence that Thompson
2 had raped Fleischli and murdered her to cover up the rape.” Thomas v. Calderon, supra at
3 1054-1055).
4 The United States Supreme Court, in reversing the Ninth Circuit Court of Appeals,
5 held that a court of appeals could only recall its mandate and reconsider a matter (which is
6 what it did in Thompson’s case) when it did so to avoid a miscarriage ofjustice. It went on
7 to define a miscarriage ofjustice, as relevant to federal habeas corpus law, as:
8 “The miscarriage ofjustice exception is concerned with actual as comparedto legal innocence.’ [Citation omitted] We have often emphasized ‘thenarrow scope’ of the exception. [Citation omitted] ‘To be credible,’ a claim
10 of actual innocence must be based on reliable evidence not presented at trial.[Citation omitted] Given the rarity of such evidence, ‘in virtually every case,
11 the allegation of actual innocence has been summarily rejected.’ [Citation12 omitted]. . . If the petitioner asserts his actual innocence of the underlying
crime, he must show ‘it is more likely than not that no reasonable juror would13 have convicted him in light of the new evidence’ presented in his habeas14 petition. [Citation omitted] If, on the other hand, a capital petitioner
challenges his death sentence in particular, he must show ‘by clear and15 convincing evidence’ that no reasonable juror would have found him eligible
16 for the death penalty in light of the new evidence. [Citation omitted]”(Calderon v. Thompson (1998) 523 U.S. 538, 559-560).
17
18 The only finding that the United States Supreme Court made about whether Thompson was
19 guilty of rape was that he did not establish that it was more likely than not that no
20 reasonable juror would have convicted him if they heard the new evidence gathered by the
21 defense and thus the Court of Appeals was procedurally barred, under the Antiterrorism and
22 Effective Death Penalty Act, from granting Thompson relief.
234. “The involvement of these informants was well-known, well-briefed, and thoroughly
24vetted during the defendant ‘s appeal. The Calfornia Supreme Court affirmed the
25conviction in its entirety including the death sentence.” (DA Response, p. 32)
26If by “the defendant’s appeal” the prosecution means his direct appeal (as the next
27sentence would suggest), this statement is absolutely false. As detailed in the defense
28Motion to Dismiss the Death Penalty and Thomas v. C’alderon, supra, there was a great deal
19
Defense Reply Bef
1 of information about the informants that was not obtained and not introduced in court until
2 the defendant’s habeas proceedings. In fact, defense counsel’s failure to investigate the
3 informants was one of the reasons that the Court of Appeals believed that Thompson
4 received ineffective assistance of counsel.
5 5. “Suffice it to say, all ofMr. Sanders’ arguments are re-hashes ofall the arguments
6 previously made by Thompson and rejected by the United States Supreme Court, which
7 found ‘ample evidence to show Thompson committed the rape’ and that ‘Thompson ‘s own
8 testimony was devastating to his defense.’ [Citation omitted]. The Supreme Court — which
9 heard all the same arguments Mr. Sanders is now reviving several decades later —
io concluded that there was ‘no basis for finding a miscarriage ofjustice. ‘[Citation omitted]”
ii (DA Response p. 32).
12 This statement is in equal parts false and misleading.
13 A three-judge panel of the Ninth Circuit Court of Appeals originally denied
14 Thompson’s petition for a writ of habeas corpus, reversing the Federal trial court. Because
15 of error on the part of the judges, the time limit for calling for an en banc review of the
16 decision passed without such a review being held and a mandate was issued. The Court of
17 Appeals decided that it had the power to recall its mandate and hold that en banc review. It
18 looked at the substantive issues, including the fact that the prosecution told two different
19 stories to two different juries and that Thompson’s jury was not given complete information
20 about the informants, and reversed Thompson’s death sentence. The United States Supreme
21 Court reversed the Court of Appeals on procedural grounds. Contrary to the representations
22 of the prosecution, it did not reject Thompson’s substantive arguments. It did not consider
23 at all whether it violated due process for the prosecution to argue two different versions of
24the truth. It did not consider at all whether the defense counsel adequately investigated the
25informants. It did not consider at all the propriety of the prosecutor arguing the probity of
26an informant when that prosecutor has information indicating his unreliability. It only
27considered whether the Court of Appeals had the power to do what it did.
28
20
Defense Reply Brief
1 As discussed, supra, the Supreme Court decided that the Court of Appeals only had
2 the power to do what it did in Thompson’s case if Thompson presented enough new
3 evidence to establish his innocence. It was in that context that the court characterized the
4 evidence of rape as “ample.” Its decision was that there was not enough evidence of
5 innocence, a standard it characterized as extraordinarily high, to permit the Court of
6 Appeals to recall its mandate. Therefore, it is misleading to imply that the Supreme Court
7 determined that Thompson was guilty, which it did not, or that it determined that he should
8 have been convicted, which it did not. It is downright contrary to reality to state that it
9 rejected the arguments made in Wozniak’s motion. It did not.
10 6. “Tellingly, in the one-sided version told by Mr. Sanders, he quotes onlyfrom the Ninth
Circuit c opinion (which was reversed) —failing to mention the importantfact that the
12 Supreme Court specifIcally overruled the Ninth Circuit and that only the Supreme Court ‘s
13 opinion survives as binding law. To suit his purposes, Mr. Sanders quotes only the
14 overruled— and thus moot — opinion.” (DA Response, pp. 32-33).
15 First, the defense motion does in fact “mention,” for about a page, the fact that the
16 Supreme Court reversed the Ninth Circuit (Defense Motion to Dismiss the Death Penalty,
17 pp. 248-249) so this statement is untrue. Second, as previously described, the reversal was
18 on procedural grounds, and not on the substantive issues ruled on by the Ninth Circuit.
19 Therefore, it is perfectly appropriate to quote from Thomas v. Calderon as to those issues.
20 This is why the Calilbrnia Supreme Court cited from it in Sakarias, supra. Surely, the
21 prosecution is not accusing the California Supreme Court of doing something legally
22 inappropriate. Finally, the implication that the defense motion cites from the Court of
23Appeals decision because it is cherry-picking its version of events is false. As discussed,
24supra, the Supreme Court did not address the substantive issues in Thompson’s habeas
25petition at all. Only the Court of Appeals decision did, and that is why that opinion is
26quoted as to those issues — the same reason that the California Supreme Court cited it, and
27not the Supreme Court decision, when ruling on the propriety of a prosecutor arguing two
28different versions of reality to two diffirent juries.
21
Defense Reply Brief
1 Novelist Mary McCarthy once famously said of fellow novelist Lillian Heilman
2 “Every word she writes is a lie, including ‘and’ and ‘the.” The prosecution’s treatment of
3 the defense discussion of the Thompson case does not quite reach this level of inaccuracy,
4 but it is pretty close. Perhaps more importantly, it does not address the core issues raised by
5 the defense. It does not deny, defend, or condemn the actions of Jacobs in arguing
6 inconsistent theories to the Thompson and Leitch juries. It does not deny, defend, or
7 condemn the use ofjailhouse informants in a situation in which the prosecution had
8 information indicating that they were unreliable. It does not deny, defend, or condemn
9 Jacobs telling the Thompson jury the untruth that the informants had no motive or bias
10 other than the desire to see justice done. The fact is that a man died as a result of a trial in
which a jury was not given accurate or complete information in large part because of the
12 actions of the Orange County District Attorney’s Office. Its willingness to distort reality in
13 order to avoid admitting or even facing that fact is yet another piece of evidence that it
14 cannot be trusted to meet its constitutional obligations in Wozniak’s case.
15 People v. Evins
16 In keeping with its theme, the prosecution again refuses to address the informant-
17 related issues in Evins that are detailed in the defense brief again under the auspices that
18 they are irrelevant because the defendant was guilty and that he was not entitled to
19 impeachment evidence prior to his guilty plea.
20 The prosecution conveniently ignores that informant James Cochrum took the stand
21 and testified at the preliminary hearing, and, as such, Evins was permitted to have Brady
22 evidence at that stage. Moreover, it is interesting that in the case selection process, the
23prosecution chose not to discuss the Gullet case, in which Cochrum testified at trial for
24District Attorney Tony Rackauckas, or the Beal case, in which the informant testified at
25trial for former Assistant District Attorney Wallace Wade. Of course, if they had included
26those cases they still would not have tackled the issue of whether there had been discovery
27compliance, but would have simply shifted again to the argument that because both were
28found guilty, whether there were entries in the OCII or other impeachment evidence that
22
Defense Reply Brief
1 should have been made available is still somehow irrelevant to a motion that studies a
2 history of informant discovery non-compliance.
3 Moreover, the prosecution knows full well that whether Evins was able to challenge
4 possible discovery violations is irrelevant to whether Judge Conley (or others) documented
5 Cochrum’s informant efforts in the OCII, including Deputy Calcagno’s opinion testimony
6 about Cochrum’s untruthfulness, or whether the prosecutors shared with supervisors that
7 former prosecutor, Judge James Cloninger, appears to have misrepresented to Utah
8 authorities about the motivations for Cochrum’s service.
9 People v. David Hull
10 With each case discussed, the OCDA offers up a slight twist on its focused effort to
avoid a good faith analysis of whether discovery violations occurred in identified cases.
12 Their brief states that “Mr. Sanders accuses [Marc Rozenberg] of not providing the
13 informant’s OCII file to the defense.” (Response Brief, page 34.) Was he correct?
14 Certainly the OCDA knows the obvious answer, but cannot simply put the words on paper.
15 Instead the line that follows is, “[t]he problem with this argument is during the preliminary
16 hearing the magistrate found the informant was not credible” and that Hull was bound over
17 for trial anyway. The answer is indeed a problem for Defendant Wozniak and all
18 defendants confronted by prosecutors who engage in this type of analysis of discovery
19 violations. It should be disconcerting that when caught in a discovery violation, the answer
20 is never to directly admit it, but to imply that if it occurred, the outcome was unaffected. A
21 court finding that arguably mitigates the harm of a violation, does not alleviate the
22 seriousness of the violation.
23 Moreover, the prosecution asserts that “[w]ithout any basis to conclude Rozenberg
24ever even looked at the informant’s OCII file, the defense baselessly accuses him ofhiding
25impeachment evidence.” Quite the contrary. The OCDA has lost through repeated non
26disclosure of the OCII materials and other informant impeachment concealment, the benefit
27of the doubt that innocent errors have occurred when Brady evidence from OCII files just
28happens to evade discovery. Moreover, the Response Brief fails to mention that another
23
Defimse Reply Brief
1 agency for which the responding party has immense respect shared Defendant Wozniak’s
2 serious questions about Rozenberg’s use of Cleveland as an informant: the OCDA. Within
3 the OCTI file, there is what appears to be an internal investigation of Rozenberg’ s use of
4 Cleveland in Hull. Investigator Michael T. Carre and Senior Investigator Montgomery
5 “voiced our opinion to both Stem and Rozenberg” regarding their “negative feelings about
6 Cleveland’s reliability.” (Motion to Dismiss, page 224, 225.) Nonetheless, Rozenberg
7 called Cleveland as a witness. Does the current prosecution team truly wish to argue that it
8 was unreasonable for the defense to believe that Rozenberg was never apprised of the
9 damaging OCIT information from the investigators, or that at a minimum, once the concerns
10 were raised it did not prompt him to examine the OCII? In his best case scenario,
11 Rozenberg improperly shielded himself from Brady evidence by making the purposeful
12 decision not to examine Cleveland’s OCII, once concerns were raised. Once again, only in
13 the OCDA’s world of incessant self-protection does Rozenberg become the victim in this
14 series of event.
15 The credibility of the Wozniak prosecution team is strained by its depiction of an
16 innocent prosecutor who accidentally failed to look at an OCII file, which happened to
17 contain valuable impeachment evidence—even after concerns had been raised about that
18 informant’s truthfulness. The Wozniak prosecution team’s credibility is further damaged
19 by the decision not to even mention the other case involving evidence concealment that
20 appears to have emerged out of the Rozenberg!Cleveland investigation: People v.
21 Morrissette. In that case former prosecutor Joel Kew filed a sealed declaration heralding
22 the credibility of Cleveland, after the informant claimed that Morrissette was poised to kill a
23witness. This declaration was filed in support of an ultimately successful effort to raise
24defendant’s bail. (Motion to Dismiss, page 207, 211.) Later, when the defense brought a
25motion to reduce the bail, the prosecution produced a replacement witness who supposedly
26heard the conversation between Cleveland and Morrissette, and used that information to
27oppose the change in bail. The internal investigation indicates that Cleveland was swapped
28out because of its realization about Cleveland’s credibility issues. The internal
24
— Defense Reply Brief
1 investigation that followed, included a statement by the assigned prosecutor, former Deputy
2 District Attorney Feccia, who said that if a witness was needed at trial he would use the
3 second witness, replacing Cleveland “because Cleveland’s past history of being unreliable.”
4 (Motion to Dismiss, page 215.) Feccia apparently recognized what was in the OCII file, but
5 never elected to share it with defense, even though that information clearly could have
6 impacted the bail determination for a defendant who thus was incarcerated when he
7 proceeded to trial.
8 In sum, Defendant acts under the reasonable belief that the first stop prosecutors
9 make once they elect to use an informant is to look at the informant index that the OCDA
10 maintains and manages for the county. If the OCDA wishes to claim this understanding is
11 inaccurate—and that instead prosecutors have not been trained to make entries, examine the
12 contents when they have a witness, and make disclosures per Brady— then simply state this
13 forthrightly and have the contention assessed.
14 People v. Abel
15 The prosecution argues that any discovery violations involving the informant who
16 testified against Abel were “fully vetted, and rejected by the California Supreme Court in
17 People v. Abel (2012) 53 Cal.4th 891” This assertion is simply not true. The only discovery
18 issue the Supreme Court dealt with on direct appeal was whether the trial court erred in not
19 turning over the informant’s prison psychiatric records to the defense. (Id. at 929-935).
20 The prosecution goes on to argue that the defense “never addressed how future efforts to
21 help the witness’s custody status affected the trial...” (DA Response. p. 35). This claim is
22 ludicrous. As the defense argued in the motion to dismiss, Ms. Ripple was promised and
23received the prison housing that she wanted, housing that was below her custodial status.
24Additionally, she was threatened with housing that she felt would put her in danger if she
25did not cooperate with the prosecution. Finally, she was allowed to testify that her situation
26would be worsened rather than improved by her testimony, and the prosecution argued the
27same to bolster his assertion that her testimony was due solely to her desire to see a guilty
28man punished.
25
Defense Reply Brief
1 Finally, the prosecution waves away the concealment of information by arguing that
2 “the evidence against [Abel] was overwhelming.” First, whether or not the prosecution
3 believes the evidence against a particular defendant is strong is completely irrelevant to its
4 responsibility to follow the Constitution. If the prosecution thinks that its subjective belief
5 about the strength of a case means that it does not matter if it provides Brady evidence,
6 Wozniak certainly cannot expect that any such evidence will be revealed to him as the
7 prosecution most assuredly believes him guilty. Second, if the evidence was so strong
8 against Abel, why did the prosecution feel the need to put the informant on the stand? And
9 why did it also need to conceal the threats and rewards which played a part in her
10 testimony? And why did it need to argue the false narrative that she was motivated solely
by her desire to see justice done?
12 People v. Trinh Phuon Ha
13 While in the Motion to Dismiss the focus is primarily on j ailhouse informants, the
14 defense presents other cases in which the prosecution engages in witness gamesmanship—
15 reflecting on a lack of reliability that representations about witnesses and evidence will be
16 accurate. In its response the prosecution suggests that Wozniak has improperly suggested
17 wrongdoing in the case of People v. Trinh Phuon Ha. To the contrary, it was the Court of
18 Appeal that identified the wrongdoing by the OCDA, which acknowledged the existence of
19 a confidential informant, only later allege later that the defense could not prove one existed.
20 (Motion to Dismiss, page 724.) The Court of Appeal warned that “[u]nethical conduct
21 must be ‘strongly disapproved,’ we leave it to the discretion of the trial court, after
22 conducting a new hearing in this matter, to determine whether to refer this matter to the
23State Bar for disciplinary proceedings regarding any attempt to conceal evidence or willful
24misrepresentations made to the court. [Citation.]” (Motion to Dismiss, page 725.)
25People v. Navarro
26The prosecution asserts that it is “unclear” how Navarro’s name on a Mexican Mafia
27hit list could have had any bearing on his defense. If it is unclear, then the prosecution must
28have failed to read pp. 698-707 of the defimse brief, which explained in some detail,
26
Defense Reply Brief
1 including excerpts from the arguments made by the prosecution and the defense in
2 Navarro’s trial, what bearing that list would have had on his trial, particularly the penalty
3 phase. To recap, the prosecution argued at trial that Navarro remained a gang member at
4 the time of the murder, as well as during his pretrial confinement. The defense argued that
5 Navarro would not have been involved in the murder because he was marked for
6 assassination by the Mexican Mafia, and that he had renounced the gang life. Surely the
7 prosecution is not now arguing that the fact that Navarro was on a gang death list was
8 irrelevant to these arguments. As detailed in the defense motion, the prosecution was
9 certainly anxious to embrace the list, and the danger it posed to Navarro, when doing so
10 helped it gain a death sentence against his co-defendant. To argue now that the evidentiary
value of that list in a case in which the overriding issue was the sincerity of the defendant’s
12 rejection of gang life is disingenuous.
13 People v. L uis Vega
14 The OCDA’s response to this case perfectly illustrates how the zealous conimitment
15 to protecting fellow prosecutors makes facts and logical analysis all but unimportant. The
16 prosecution writes that “after repeatedly arguing that jailhouse informants are inherently
17 unreliable, the defense believes the information from this informant should have been
18 believed by the prosecutor and immediately provided to the defense.” (DA Response, page
19 38.) While there are unquestionably immense questions about the reliability of informants,
20 the paramount issue in this litigation is whether defendants and juries have had legally
21 mandated discovery that is essential to making fair assessments of believability. And, of
22 course, regardless of what one defendant (Wozniak) and his counsel view as the relative
23credibility of informants, the OCDA has for decades led juries to believe that defendants
24can spend the rest of their life in prison or be executed based upon the word of infonnants.
25Therefore, seemingly the word of the same informant—this time reporting statements from
26a defendant who stated that while he despised his co-defendant, he could not believe he had
27been charged with a crime he did not commit—would carry enormous weight.
28
27
Defimse Reply Brief
1 Did that happen in People v. Lu/s Vega? DA’ s response brief stated that “[i]n the
2 end, prosecutor Steven Schriver carefully considered the information from this informant
3 and dismissed the case because he entertained a reasonable doubt.” (DA Response, p. 38.)
4 It appears that the prosecution is speaking of the “much-maligned” Oscar Moriel—and not
5 Juan Calderon (who is identified by name in the next section of the prosecution brief), and
6 who was also a witness to a statement from Sanchez. If the prosecution is claiming that
7 Schriver considered the statements made to him by Alvaro Sanchez about Vega’s
8 innocence, this is an entirely new claim and wholly inconsistent with testimony elicited
9 during the Dekraai hearings. Schriver testified in the Dekraai hearings that he had no
10 recollection of seeing the Moriel notes. Moreover, despite the claim of former Santa Ma
Police Department (SAPD) Detective David Rondou of having shared information with the
12 prosecutor, Schriver denied any recollection of learning about what Moriel had been told
13 by Sanchez. Moreover, Schriver asserted that it was impossible to know what had been
14 placed in the OCDA’s file, because the file has been lost.
15 If Schriver provided an account of events different than his Dekraai testimony, this
16 motion should serve as an informal request for said statements.
17 People v. Brambila
18 Confronted with discovery calamity created by the apparent systemic failure by the
19 OCDA to disclose Brady evidence in the OCII files, and refusal of the OCSD to disclose
20 Brady evidence within the TRED files, as well as numerous other discovery violations—
21 conduct that has likely cost countless individuals their liberty during the past three plus
22 decades—the Wozniak prosecution is fully prepared to identif conduct that is “beyond
23 disturbing.” Quite obviously, this characterization does not relate to the OCII or TRED
24systems, which barely receive passing mention in the responsive brief, but rather the
25conduct of counsel for Wozniak.
26According to the prosecution response, the trial prosecutor in Bramb/la was falsely
27accused of working with others to both hide evidence and to keep the lid on a highly
28embarrassing conflict of expert opinion between members of the same police department
28
Defense Reply Brief —
1 regarding a suspect’s gang membership. According to the response brief, the prosecution’s
2 decision to avoid charging the purported driver in a special circumstances murder, Henry
3 Cabrera, was unrelated to the fact that a veteran SAPD veteran gang expert testified in
4 Cabrera’s separate case that he was a member of a rival gang to those who committed the
5 homicide, in a crime that occurred just 19 days after the homicide.
6 Cabrera is serving a life sentence in that case, although habeas corpus litigation has
7 been initiated since it was disclosed in the Dekraai hearings that subsequent to receiving his
8 life sentence for carjacking benefitting the Highland Street gang, SAPD gang experts
9 testified in Brambila and his co-defendant’s trial that Cabrera was instead a member of one
10 of Highland Street’s rivals, the Delhi street gang.
11 Counsel for Wozniak certainly believed, that in light of the fact that Cabrera was
12 described in two different trials as a veteran Delhi gang member and the driver in a
13 homicide in which he allegedly changed the course of the car’s direction to aid and abet the
14 shooting, that there was little reason not to aggressively pursue his culpability—aside from
15 the significant conflict among SAPD gang experts. It was also particularly striking that
16 within the first few pages of prosecution discovery is a dispatch log, which includes a
17 neighbor’s description of apparent suspects pulling up and exiting a car shortly after the
18 homicide. The log states that “. . . two bros live in the res, one subjs name is ‘Henry,’ CP
19 said one of the subjs. just got out ofjail.” In fact, Cabrera had just been released from
20 prison. Moreover, the description of the suspects fleeing to Cabrera’s home immediately
21 after the homicide, was also a detail provided by the key prosecution witness, Juan
22 Calderon. When prosecutor Rahul Gupta was asked about the log during the Dekraai
23hearings, he said he had no recollection of seeing this information on the log.
24Is what occurred in this case a matter of simply poor case analysis and study, and not
25another instance of police and prosecutor protectionism, of the type fully embodied in the
26DA response brief? Did no one associated with the prosecution somehow learn the same
27gang expert testified in two trials that Cabrera was a member of Highland Street and
28decided it was necessary to discover it to the homicide suspects?
29
Defense Reply Brief
1 When a party claims their actions were the product of mistake versus purposeful
2 deception, perhaps the best gauge of that explanation is the response once apprised of the
3 supposedly, previously unknown information. The information uncovered by the defense
4 was described in motions nearly two years ago. What has been the progress with the
5 investigation of Cabrera’s role in the murder? What has the OCDA learned from its studies
6 of the conflicting gang opinions between the referenced experts, as part of an effort to
7 determine whether one or more of these experts had given false or unreliable testimony in
8 other cases? The fact that these questions are rhetorical is something that may be
9 appropriately described as “beyond disturbing.”
io People v. Jarosik
11 Among the most misleading analyses of a section from the defense motion is the one
12 addressing Mark Jarosik’s case. In an astounding example of straw-man logic, the
13 prosecution states that the defense version of [t]he facts presented by the defense make it
14 appear that the defendant was convicted as a result of the Sheriff’s illegally placing an
15 informant with a presumptively innocent man to obtain what Judge Kazinsky [sic.] has
16 referred to as a ‘false confession.’ A review of the facts surrounding this sensational claim,
17 however, reveal something different.” (DA Response, page 40.)
18 It is unclear whether the prosecution actually read the defense section, which it
19 pretends to summarize and then repudiate—or just simply decided it best to move simply to
20 re-framing what was written to their liking. In actuality, the defense provided a summary
21 of facts re-stated entirely from the appellate court opinion, never stated that Jarosik gave a
22 “false confession” to testifying witness Timothy Ryan, and never analyzed whether the
23defendant and Ryan were placed in a van illegally.
24 What is most stunning is there is absolutely no analysis of the issues that the defense
25actually raised, which involved the failure to turn over discovery related to two rebuttal
26witnesses, whom the prosecutor abandoned as discovery and credibility issues emerged
27with one of them. Why did the prosecutor in the case not turn over a) the O.C.I.I. file from
28Mark Cleveland, whom they called at an admissibility hearing, or b) the evidence about the
30
Defense Reply Brief
1 jaithouse informant history of Jeremy Bowles, whom they announced they would call? The
2 prosecution never actually addresses those points, which is the focus entirely of this section
3 in the defense brief.
4 People v. Joseph Govey7and Shirley Williams
5 The prosecution’s single paragraph response to the detailed allegation in the Motion
6 to Dismiss, regarding allegations of misconduct in these related cases, conveniently
7 bypasses the entire history of discovery delay and concealment that marred these cases.
8 Additionally, as so often occurs in the prosecution’s response, it is unknown who exactly is
9 the source for the representation being made in the absence of any declaration or other
10 source identification. The author writes that “[g]iven the extreme violence of the gangs
involved, there were great concerns about the safety of” an out of custody informant whose
12 identity Govey sought. As such, the “Huntington Beach Police Department decided to
13 exercise its privilege under section 1042 not to disclose the identity of the informant.” (DA
14 Response, page 42.) The response explains that this was the reason for the dismissal of
15 Govey’s case, not some nefarious cover up.
16 But if this rendition of events were inaccurate, would the prosecution fmally admit
17 that its actions were motivated by the desire to keep the defense from seeing informant
18 Alexander Frosio’s TRED records, which have a slew of impeaching evidence, and were
19 due to be revealed to the defense on the day that the prosecution dismissed several of the
20 charges? Nonetheless, the actual course of events are as follows, as reflected on Govey’s
21 Vision printout (Exhibit F4 of’ the Motion to Dismiss) and the transcript of court
22 proceedings:
23
24
25 the prosecution’s response to the discussion ofPeople v. Ramirez, DefendantWozniak did not assert in that case that prosecutor Yellin committed misconduct in that26 case. Rather, the defense analyzes statements and evidence relevant to issues of the use and
27 presentation of informants, the representations of Yellin about his strict compliance withdiscovery laws, his representation about informant Frosio’s credibility and its relevance to28 the Govey case, as well as other related issues.
31
Defense Reply Brief
1 On August 29, 2014, the defense filed a motion to compel discovery regarding “C.I.”
2 Marcel Irizarry. Counter to the prosecution brief, Irizarry’s identify was already known.
3 The motion was granted and orders for items were filed. On September 22, 2014, counts 5-
4 7 were dismissed, and Assistant District Attorney Costello said as a result she would not be
5 disclosing records. She also claimed to not have reviewed because the she was dismissing
6 the charges. (Motion to Dismiss, Exhibit G4, pages 43, 44.) Those records, which were
7 later determined to include the above referenced TREDs, are filled with impeaching
8 evidence.
9 Costello also made it clear that issues related to discovery from the Huntington
10 Beach Police Department, pertained to the other counts that remained. Immediately, after
i dismissing those counts, she stated that, “. . . we’re only dealing with Marcel Irizarry and
12 the Huntington Beach charges from — that came from the evading, felon in possession of a
13 firearm, and the ammunition and the counterfeit bills.” (Id. at 44.) Costello later stated that
14 she had a detective from the Huntington Beach Police Department who had brought
15 documents related to Irizarry, and there was a request to go in camera before discovery
16 occurred. (Id. at 45.) Costello also emphasized that the detective had brought the
17 “confidential informant file on Marcel Irizarry, and that does still pertain to the Huntington
18 Beach counts that are still remaining.” (Id. at 45.)
19 On October 2, 2014, the remaining counts were dismissed. It is very likely that the
20 Huntington Beach Police Department did not want to turn over evidence about Irizarry, but
21 again, his identity was already known. On the other hand, it is not known how the Wozniak
22 prosecution team came up with the notion that the Govey prosecutor was protecting the
23identity of the informant “{g]iven the extreme violence of the gangs involved” and “there
24were great concerns about the safety of this individual.” It appears far more likely that the
25prosecution and the Huntington Beach Police Department were concerned about turning
26over evidence about Irizarry’s background that had not been disclosed in the first two years
27of the case. Hopeflully, in the hearing associated with this case, Costello can explain on the
28record her reasons for dismissing counts 5-7.
32
Defimse Reply Brief
1 People v. Bergaren
2 The Motion to Dismiss provides a detailed description of recorded (and unrecorded)
3 conversations between informant Raymond Cuevas and prosecution witness Rudy Duran.
4 The motion explains in detail why both Brady and Penal Code Section 1054.1 required
5 disclosure. Therefore, after multiple hearings in which prosecutor Murphy has vouched for
6 the character of fellow homicide prosecutor, Senior Deputy District Attorney Larry Yellin,
7 asserting that his colleague had done no wrong, the opportunity finally presented itself to
8 explain the analysis leading to this conclusion.
9 But, before getting to the factual analysis, the prosecution proposed to explain the
10 purported motives of opposing counsel for even raising the allegations. Although
11 completely irrelevant to the analysis of the discovery concealment, the prosecution engages
12 in an illogical and circular argument that Yellin’s concealment of evidence had been raised
13 because he was critical of the Dekraai litigation—as if to suggest that his opponent would
14 only documents allegations of misconduct if the prosecutor had been publicly critical. A
15 multi-hundred page document, in which the vast majority of the prosecutors discussed have
16 not spoken to the press, corroborates the absurdity of this claim.
17 Having completed its examination of defense counsel’s motives, at long last it was
18 time for analysis of the allegations. But, before moving on to that point, the prosecution
19 reminded the reader “[tjhat there is not rational doubt as to [Begaren’s] guilt and he was
20 convicted accordingly.” (DA Response, page 43) Finally, the brief turns to witness Duran.
21 The prosecution explained that based upon information that was provided by Duran, Yellin
22 acted “[i]n a demonstration of irreproachable ethics, he immediately dismissed the case” of
23one of the defendants who had been charged. (Ibid.) The defense joins the prosecution in
24applauding Yellin for this decision.
25Still, this left the prosecution with just one issue—actually the only issue raised
26about the Begaren case in the moving papers—whether Yellin hid Duran’s conversations
27with L.A. informant Raymond Cuevas, in violation of Brady and P.C. Section 1054.1 On
28that subject, the prosecution elected to not write a word.
33
Defense Reply Brief
1 People v. Joseph Suess and Heriberto Calvillo
2 The next case involving Yellin involved apparent discovery violations of failing to
3 turn over statements made by Calvillo to informants Raymond Cuevas and Jose Paredes;
4 informants who were placed in his jail cell and ultimately paid $600 each for their services.
5 The prosecution’s response again begins with evidence that the murder occurred and the
6 defendants were responsible—although at some point during the course of writing its brief
7 the prosecution must have recoghized that its discovery obligations do not hinge on the
8 prosecutor’s personal evaluation of guilt. (Ibid.) The prosecution’s brief then states, “[i]n
9 addition, the record of this case clearly shows Mr. Yellin did not learn of the existence of
10 this statement until the middle of trial. He immediately informed defense counsel, and
provided a copy of the taped informant statement the following morning.” It is unclear
12 what “record” the prosecution is referring to in its response. The prosecution brief is
13 without any supporting documents, and there is no citation to a particular record.
14 Moreover, Suess clearly does not agree with the depiction of Yellin immediately
15 turning over the recording once he learned of it during the trial. As discussed, appellate
16 counsel for Suess specifically requested the recording. (Motion to Dismiss, page 689.)
17 Logic also rebuts the notion that Yellin learned of the recording for the first time during the
18 trial. In fact, the assertion (whoever is making it) does not ring true. Yellin had already
19 used one of the LA paid informants, and then elected to hide the recording of that statement
20 in Begaren. Although the prosecution in this case understandably decided not to wade into
21 the discovery violation in Begaren, Yellin did not deny taking possession of the recording
22in that case. Rather, once uncovered in Dekraai, Yelling initially offered an unrecognized
23discovery exception for non-disclosure, by stating that “[i]t would have given (Begaren’s
24attorney) nowhere to go.” (Motion to Dismiss, page 672.) Is Yellin suggesting that, unlike
25the Begaren case, local investigators on the Suess case who brought the Los Angeles
26informants Orange County, this time inexplicably hid this effort from Yellin until the
27middle of trial. More explanation would be needed to make this version of events even
28conceivable. There are many questions that would logically follow. Is Yellin truly
34
Defense Reply Brief
1 claiming that he had no idea of the orchestrated effort to put Cuevas and Paredes with
2 Calvillo? Did the investigators write a report about the contact before trial, and hide that
3 from Yellin, as well? Why? If Yellin had a report and not recordings before trial, why was
4 the report not turned over? How did Yellin purportedly learn of the recorded
5 conversations? Did an investigator contact him, and explain they forgot to tell him there
6 was a recorded conversation? What was their explanation? What did Yellin do in
7 response? Did Yellin tell prosecutor Murphy that he turned over the recording mid-trial? If
8 that occurred, does he have the discovery receipt or some other form of evidence that this
9 actually occurred? Of course, these are just a few of the many questions that would be
10 reasonably asked in light of this logically strained explanation for an apparent and
i significant discovery violation.
12Evidence of Agency-Driven Efforts at OCII Concealment and Indifference
13 to Prosecutorial Concealment Emerges from Unlikely Litigation14
Jacobs v. Rackauckas Summary15
16 Subsequent to the filing of the Motion to Dismiss, Defendant Wozniak uncovered
17 additional, critical evidence about the OCDA’s long-standing perspective on disclosure to
18 the defense via the OCII database. This evidence also offers perhaps the most compelling
19 corroboration yet that the OCDA is institutionally incapable of acknowledging the
20 possibility that its prosecutors would intentionally interfere with the due process rights of a
21 defendant.
22 On April 2, 2001 District Attorney Tony Rackauckas sent Michael Jacobs a letter
23 informing him of his termination. (Jacobs’ Termination Letter, attached herein as Exhibit
24 Gil.) Jacobs would ultimately respond by initiating a civil lawsuit against Rackauckas and
25 the OCDA for wrongful termination. If authentic in its defense of allegations made by
26 Jacobs, Rackauckas, and members of his staff believed Jacobs would stop at nothing to win
27 the civil case—even if that effort required dishonesty. Yet despite ample, independent
28 evidence that the willingness to win at any cost guided his efforts as a prosecutor, the
35
Defense Reply Brief
1 OCDA covered its eyes again and pretended that it was unable to envision how Jacobs
2 likely deprived countless defendants of due process.
3 Moreover, in an unusual twist—the import of which is only now becoming clear for
4 the first time as informant operations in this county finally have come to light—key
5 discovery in the civil litigation addressed Jacobs’ use of informants and the office’s
6 discovery practices related to informants and the informant index that it manages.
7 Jacobs v. Rackauckas
8 Jacobs alleged in his wrongful termination suit that he was fired in retaliation for
9 presenting the California Attorney General’s Office (“AG”) with two separate allegations
10 that Rackauckas was involved in criminal wrongdoing. (First Amended Complaint for
11 Damages in Jacobs v. Rackauckas, Super. Ct. Orange County, No. O2CCO 1476, filed July
12 29, 2003, attached herein as Exhibit Hi 1.) The first allegation Jacobs made to the AG was
13 that Rackauckas called off an investigation because it involved a personal friend and
14 political fundraiser. (Ibid.) The second allegation was that Rackauckas had set up a
15 charity, the Tony Rackauckas Foundation, which illegally accepted money from the
16 community in exchange for official-looking “Commissioner” badges. (Ibid.) Jacobs
17 further told the AG that Rackauckas had OCDA staff run background checks on these
18 donors during work hours using county resources. (Ibid.) Jacobs also claimed that within
19 an hour of him being fired, the OCDA anonymously sent confidential files relating to his
20 employment to local newspapers. (Ibid.)
21 Rackauckas, in the termination letter sent to Jacobs and in his testimony on the stand
22 in Jacobs v. Rackauckas, adamantly denied each of these allegations.8 Furthermore,
23
248 Rackauckas testified that he disagreed with the central premise of Jacobs’ suit: that Jacobs25 was terminated for complaining about Rackauckas to the AG. Rackauckas testified that it
26 was perfectly fine for employees from the DAs office to complain to the AG:
27A. That’s their right to do that, and the policy of the D.A.’s Office is that if28 you’re a deputy D.A., or not even necessarily a deputy D.A., anybody in the
36
Defense Reply Brief
1 Rackauckas declared that he believed Jacobs was not being truthful in his testimony when
2 he claimed to genuinely believe the termination was wrongful. Rackauckas was asked
3 whether he believed that Jacobs truly thought that the OCDA was lying about their reasons
4 for terminating him:
5
6 Q. Also, in your mind you believed that Mr. Jacobs thought that — that youlied to him; is that correct?
7 A.No.
8 Q. Are you of the belief that Mr. Jacobs believes that you wrongfully terminatedhim?
9
10A. Tam not.9 (Exhibit I, atp. 5160.)
11 Correspondence Between the AG and the OCDA Regarding Jacobs and theOCII
12 As noted above, one of the stated reasons for Jacobs’ termination was a series of13 letters directed to Chief Assistant AG David Druliner, who was located in Sacramento. On
14
15
16 District Attorney’s Office, if there’s something that you feel needs to beinvestigated or you have some complaints that you want to take the Attorney
17 General’s Office, then that’s your — that’s your right.
18 Q. Well, don’t you have to get approval from someone before you do that?A. No.
19 Q. Aren’t there going to be recriminations?
20 A. No, no. No it’s your right. You can — you can go. (Reporter’s Transcript21 (Rackauckas’ Testimony), Jacobs v. Rackauckas, Super. Ct. Orange County,
22No. O2CCO 1476, p. 4640, Attached 1-lerein as Exhibit Iii.)
23 The reasons given in the termination letter for Jacobs’ firing were his poor relationship withpersonnel from the Orange County Sheriff’s Department, his decision to send repeated
24 hostile letters to the AG complaining about their handing of appeals from Orange County,25 and the fact that he made inflammatory statements about Rackauckas to the press and to co
workers. (Exhibit Gil.)26
27 An objection to the question was sustained. 1-lowever, Wozniak does not seek to introducethe statement for a legal effect of the answer, but for circumstantial evidence of
28 Rackauckas’ perception of Jacobs’ honesty.
37
Defense Reply Brief
1 May 7, 1999 Michael Jacobs wrote to Druliner complaining about the handling of capital
2 appeals coming out of Orange County by the Attorney General’s office in San Diego—
3 placing a particular focus on how his own capital cases were being handled. (Jacobs’ Letter
4 to Druliner, attached herein as Exhibit J 11.) Before diving into specific complaints about
5 four particular cases, he unambiguously made clear the level of his displeasure: “I do
6 believe that, so far, the handling of the four cases discussed below entailed a rather low
7 level of competence as well as a deficiency in aggressiveness and professionalism of the
8 deputy attorney generals assigned.” (Ibid.)
9 One of the cases he felt the AG had handled unsatisfactorily was People v. William
10 Payton, a case discussed in detail within the Motion to Dismiss. Jacobs complained that he
11 was not adequately kept up to date on issues in the case before turning his sight to
12 informant and discovery issues:
13
142. A discovery order was granted in federal court prior to a hearing on awrit of habeas corpus giving discovery of attorney work product—all records,
15 notes, and confidential records of informants with minimal opposition by the
6deputy attorney generals assigned and no writ was taken.1 3. When the assigned deputy attorney general was told that my office
17 did not consider our informant index covered by the order, he stated thathe would have to inform the court that we were withholding information18 and initially refused to even assist in preparing a protective order (which my
19 office later filed and which was signed by Judge Real). Ibid., emphasisadded.)
20
21 Jacobs then enumerated his complaints with AG’s handling of the appeal in People
22 v. John Visciotti, again complaining of the AG’s failure to adequately protect the OCDA
23 from having to turn over evidence to habeas defense counsel. Ibid.) Jacobs also discussed
24 what he believed were deficiencies in the AG’s handling of two other capital cases that he
25 had prosecuted: People v. Robert Thompson’° and People v. Kenneth Clair. (Ibid.)
26
27‘° there be any possibility that Jacobs harbored secret concerns about his conduct in28 Thomas Thompson’s case that he only shared with fellow prosecutors, Jacobs proceeded to
38
Defense Reply Brief
1 Attorney General Focuses on Serious Concerns Regarding People v. Payton
2 On June 16, 1999, Druliner responded in a letter to District Attorney Tony
3 Rackauckas. (Druliner’s Letter to Rackauckas, attached herein as Exhibit Ku.) Druliner
4 defended the AG generally, while addressing each one of Jacobs’ complaints individually.
5 (Ibid.) Druliner questioned the “tone and timing” of Jacobs’ letter as it was written just one
6 day after the deputy AG working on Payton faxed Jacobs a copy of informant Daniel
7 Esealera’s court file. (Ibid.) Certainly never believing the letter would be seen by anyone
8 other than Rackauckas and perhaps his top lieutenants,1’the author momentarily described
9 exactly what he and the fellow members of his office saw. Druliner affirmed the obvious:
10 The file “directly contradict[s] and possibly impeach[es]” Jacobs’ deposition testimony in
11 Payton. (Ibid.) In actuality, there was nothing “possible” about the impeachment. Jacobs
12 had falsely testified that he was not present and did not participate in Escalera’s change of
13 plea and sentencing. Druliner described the file:
14
15Escalera’ s court file clearly shows that Mr. Jacobs participated in Escalera’ schange of plea on October 30. 1981. Indeed, Mr. Jacobs even signed the
16 change of plea form. Additionally, Mr. Jacobs was present at Escalera’s
17sentencing on February 26, 1982, and participated in an in-chambersconference with the court and defense counsel, contrary to his deposition
18 testimony that he was “certain” he never went into chambers for a conference
19regarding Escalera. (Ibid.)
20 Payton’s appellate counsel, like so many before and after him, found himself arguing
21 on behalf of his client that there had been an undisclosed deal between a prosecutor and his
22 informant in exchange for his testimony. But in Orange County, where prosecutors and law
23 enforcement officials routinely ask judges to accept that the criminal law landscape is
24 littered with informant-related “coincidences” that only favor the government, Jacobs
25
26 express his frustration that Robert Thompson had still not been executed even though27 Thompson was already executed, and both were convicted the same year. (Ibid.)
“(Grinfeld, DA ‘s Reasonfor Firing Deputy Surprises AG Staffers, Daily Journal (April 16,28 2001) attached herein as Exhibit Li 1.)
39
Defimse Reply Brief
1 wanted to go to the well again. An official with the AG—likely frustrated that his office’s
2 loyal support, even in the face of some of Jacobs’ incredible testimony, was met by hostility
3 that the support was still not sufficiently vigorous—momentarily had enough. Druliner
4 stated that “Payton’s federal petition for writ of habeas corpus alleges, among other things,
5 that the Orange County District Attorney’s Office, and Mr. Jacobs in particular, withheld
6 Brady material in the form of an alleged secret deal with Escalera to testify in exchange for
7 leniency in Escalera’s pending robbery case.” (Ibid.) Druliner pointed out, just six days
8 after Payton was sentenced to death, Escalera’s attorney wrote the probation officer prior to
9 his own sentencing that:
10
11Certain promises relating to Mr. Escalera continuing to work with lawenforcement and testify in the aforementioned superior court prosecution of
12 Mr. Pa[yjton were discussed, which led to the ultimate plea of guilty by Mr.
13Escalera. The court and district attorney, as well as Mr. Escalera and myself,are aware of the parameters of the consideration promised Mr. Escalera for his
14 activity. (Ibid.)
15 The letter was a rare “smoking gun” in the history of Orange County informant litigation.16 Certainly never contemplating that habeas counsel would dig through Escalera’s case file17 17 years later, or another capital defendant would study the subject 33 years later,18 Escalera’ s attorney penned the truth. Escalera did not plead guilty by coincidence as soon19 as Jacobs took over as the prosecutor in the case. And the informant was not simply20 crossing his fingers and praying for the desired outcome. Everyone who needed to know21 about the deal in waiting—except the individual who required the information the most,22 Payton—was “aware of the parameters of the consideration promised by Mr. Escalera for23 his activity.”24
25
26
27
28
40
Defense Reply Brief
1 Ultimately, Druliner attempted to walk back from the logical analysis he had just
2 spelled out.’2 But it was too late. Moreover, Druliner acknowledged that “there remains
3 the fact that Mr. Jacobs’ deposition testimony is at odds with the court records, and thus
4 challenges Mr. Jacobs’ credibility in the federal habeas proceeding.” (Ibid.) Jacobs had
5 hidden the truth at Payton’s trial about the deal awaiting informant Escalera, whether the
6 AG wished to publicly acknowledge it or not. Sadly, the efforts to make cheating matter in
7 post-trial capital litigation usually fail. To date, the case of People v. Payton has been no
8 exception.
9 Long-Awaited Insights About the OCDA’s Efforts to Hide the OCII
10 In 2014, OCSD Special Handling deputies were nearly successful in carrying out a
11 successful conspiracy to hide the existence of TREDs. Fortunately, that effort, which
12 played out in People v. Dekraai, failed. Instead, there is now, at long last, an understanding
13 of these records, and their value in illuminating the individual work of informants and the
14 organized jailhouse informant operation that was previously denied to exist. During
15 litigation in Dekraai, OCDA prosecutors attempted to separate themselves from the records
16 and any knowledge of their contents. Whether that separation is fictional or not, in 2015 a
17 greater understanding of the county’s dedicated informant database emerged—and the
18 OCDA cannot separate itself from the multitude of serious problems associated with it,
19 since it manages the database, and has done so since 1980 or earlier.
20 In the Motion to Dismiss, Defendant Wozniak detailed efibrts to suppress Brady
21 evidence from OCils in People v. Thomas Thompson, People v. Escalera, People v.
22 Dekraai, and numerous cases in which informant Mark Cleveland had provided evidence.23 Claims by former prosecutor Jacobs that he was oblivious to the OCII’s existence during24 the first two decades of his career as a prosecutors—though likely false—brought into25
26
2712 Druliner wrote in the same letter that based upon interviews with Escalera’s attorney andJacobs that the AG decided that there was no such agreement for consideration in place at28 the time of Escalera’s testimony. (Ibid.)
41
Defense Reply Brief -
1 painful reality that the win-at-all-costs veteran homicide prosecutor had never turned over
2 to a single defendant Brady contents from an OCIT file.
3 Still, could Wozniak have incredibly stumbled upon a swath of OCII disclosure
4 violations, which are somehow unrepresentative of the OCIT discovery practices in Orange
5 County over the past three plus decades? Certainly not. But if confirmation of this
6 conclusion was still somehow needed, incredibly it would come from Druliner’ s letter.
7 During a section of the letter, Druliner turned to discovery of informant information
8 in Payton. (Ibid.) Druliner explained that Jacobs complained that the AG has been
9 unsuccessful at preventing discovery orders for the two informants in the case. (Ibid.) Per
10 Druliner, Deputy AG Esteban Hernandez believed—after consulting with other deputy AGs
11 as well as with Supervising Deputy AG Bill Wood (the capital case coordinator for the San
12 Diego office)—that the OCDA was required to turn over all informant-related discovery in
13 light of the allegations of secret deals between the prosecution and informant witnesses
14 Escalera and Alejandro Garcia. (Ibid.) That belief was so strong that the AG felt that filing
15 a writ on the issue would be “futile” and would be perceived by the judge as
16 “stonewalling.” (Ibid.)
17 Then Druliner turned to the subject of the OCII. It is difficult to read his writing on
18 this subject and perceive him as other than someone truly troubled by what he had learned,
19 in terms of the lengths the OCDA had been willing to go to keep the contents of Escalera’s
20 OCII file secret. Druliner described how on February 8, 1999, Deputy DA Burl Estes
21 disclosed to Payton’s counsel “for the first time the existence of an informant index in your
22 office.” (Ibid.) Flowever, Estes told Payton that he could not find anything in the index for
23 Escalera because he did not have Escalera’s date of birth. Ibid.) Needless to say, Estes’
24 claim were highly suspicious. It would seem unlikely that there was more than one
25 informant named “Daniel Esclaera” in the OCII. Apparently, when Deputy AG Hemandez
26 learned of this exchange culminating in Estes’ expressed inability to search the OCII
27 without the date of birth—which he should have been able to get immediately from the
28 Payton file—Hernandez contacted Estes and gave it to him. (Ibid.) That should have taken
42
Defense Reply Brief
1 care of the matter. However, when Hernandez later followed up with Estes to see what was
2 in the index, Estes replied that he never checked and had lost the date of birth. (Ibid.)
3 Hernandez gave him the date of birth a second time. (Ibid.)
4 According the to the letter, Hernandez spoke to Jacobs, who told him about an
5 1979 entry stating that Escalera was “reported to be selling ballons [sic.] to hype prostitudes
6 [sic.] Subject is a member of EME [i.e., the Mexican Mafia] and has put out a contact [sic,
7 ‘contract’] on an informant’s life.” (Ibid.) This entry pre-dated Escalera’s contact with
8 Payton, which occurred in 1981. (Motion to Dismiss, page 110.) Hemandez then received
9 a call from Deputy DA Jim Marion saying that the OCDA “did not intend to provide
10 discovery of this entry in the informant index as his reading of the SDT was that it did not
11 cover entries in the informant index.” (Ibid.)
12 The response of the AG is noteworthy, as described in the letter to Rackauckas:
13
14Mr. Hernandez then consulted with Supervising Deputy Attorney General BillWood, Supervising Deputy Attorney General Laura Halgren, who is the San
15 Diego office ethics expert and the prosecutor in the Siripongs case, and Senior
16Assistant Attorney General Gary Schons, who is an author of the CDAAProfessionalism manual and expert in Brady law. All these lawyers were in
17 agreement that if your office did not disclose this material in the informantindex, the Attorney General’s office had an independent ethical obligation to18 disclose it to the defense under Brady. Ibid.)
19After Hernandez informed the OCDA of the AG’s decision, the OCDA’s “position20
21softened.” (Ibid.) But apparently unaware that Estes had seemingly disclosed that the
22OCDA has an informant index, the OCDA’s “concern shifted to protecting the
23confidentiality of the mere existence of the informant index itself.” (Ibid.) Ultimately the
24AG obtained a protective order “preventing the defense from disclosing anything about theinformant index.” (Ibid.)
25
26
27
28
43
Defense Reply Brief
1 Face to Face with Issues of Discovery Concealment Generally and with the
2 OCII Specifically
3 Rackauckas Confronted with Issues of OCII Discovery
4 Druliner’s detailed letter brought the newly elected District Attorney face to face
5 with significant questions about whether Brady discovery from the OCTI was being
6 perpetually hidden from defendants pre- and post-trial. While the AG was clearly shocked
7 by the office’s perspective on discovery obligations revealed by Estes, Jacobs, and Marion,
8 the question is whether any of this caused comparable concern to Rackauckas—or whether,
9 as it appears, the worry was limited to the effect that Jacobs’ charged writing could have on10 relations with the office. In view of the OCII-related concealment in the years that followed11 the Jacobs/Druliner letters, logic suggests that Rackauckas, at best, took no action to ensure12 that discovery compliance from the OCII file was occurring. At worst, Rackauckas
13 believed Jacobs was dishonest and deceptive, but fully approved of the roadblocks that the14 veteran prosecutor placed in the path of due process.
15 The contents of Druliner’ s letter and the apparent failure to act to stop similar
16 concealment ofBrady information found within the OCII corroborates an entrenched
17 agency mindset that systematically devalues discovery obligations. In the face of a court18 order requiring discovery of information related to Escalera and Garcia, Jacobs remained19 determined not to disclose information from the OCII, which was clearly contemplated by20 that order and required for disclosure under Brady. It is abundantly clear that if the AG had21 not been intertwined in the litigation and appropriately threatened to reveal that the OCDA22 was violating its discovery obligations, that the OCDA would have once again withheld the23 demonstrably relevant and impeaching entry from Escalera’s OCII file. All of this begs a24 rhetorical question: How many times have local prosecutors, left to their own diminished25 fidelity to Brady when it came to disclosure of evidence from OCII files (other discovery26 sources) deceived, misled, or sat silent while “knowing”—as the prosecution emphasizes so27 often in its responsive brief—that the defendant’s guilt makes complete discovery of28 minimal importance?
44
Defense Reply Brief
1 The Refusal to Investigate Jacobs’ Cases
2 For defendants who have been prosecuted by the OCDA—especially those
3 incarcerated—the first question that certainly has emerged from the informant-based
4 litigation is whether their own case may have been affected by improper discovery
5 practices, and secondarily whether the OCDA would ever publicly acknowledge its moral
6 responsibility to take remedial action. The response to date has been crystal clear. The
7 unwillingness to absorb the painful, public consequences of unraveled cases appears too
8 great a cost to bare for the OCDA—further supporting the contention that prosecution
9 cannot be counted on to turn over helpful penalty phase evidence in this matter, if it was
10 previously withheld.
11 The reality, though, is that scandal or no scandal, the OCDA has never satisfactorily
12 shown an interest in setting aside its interests in self-protection to safeguard the rights of the
13 accused. There is perhaps no better example of this than the refusal of the OCDA to
14 investigate Michael Jacobs’ cases.
15 In fact, if there was ever a prosecutor in this county whose actions have cried out for
16 a case-by-case reexamination of his entire body of work it is Michael Jacobs. Rackauckas
17 knew this better than anyone. Rackauckas testified in Jacobs v. Rackauckas that he
18 believed Jacobs was dishonest—in doing so implying that his opponent was willing to
19 fabricate to win. Not only would Rackauckas have claimed that he was the victim of
20 Jacobs’ moral turpitude, but he had received and studied Druliner’s startling letter detailing
21 Jacobs’ highly questionable conduct (at the very least) in cases such as Payton, as well as
22 showing the prosecutor’s willingness to do whatever it would take to get and keep
23 convictions intact.
24 Even a slight amount of study and or knowledge about Jacobs’ actions in People v.
25 Thomas Thompson would have further amplified those concerns. Thompson was yet
26 another case where critical evidence from the OCII database did not make it to a capital27 defendant, which Jacobs attributed years later to his supposed 22 years of ignorance that the28 OCII database even existed. The authenticity of this claim was made even more suspect by
45
- Defense Reply Brief
1 Jacobs reaction in Payton when the opportunity for OCII disclosure presented itself.
2 Jacobs’ first instinct was not to make immediate discovery, but instead to violate a court
3 order to stop the condemned defendant Payton from learning the ugly truth about the
4 informant Jacobs called as his last penalty phase witness. Of course, Jacobs likely had a
5 myriad of motivations for keeping the lid on what was hidden about Escalera and the
6 disaster that resulted. As Jacobs knew—but Payton would not learn for years—is that
7 despite Escalera trying to have a fellow informant killed, the prosecutor made and kept a
8 promise to Escalera that he would not return to custody. Jacobs kept his promise, and
9 Escalera stayed on the streets, where he committed a robbery and killed one of the victims.
10 Even if Rackauckas did not know that the informant who helped secure Payton’s
11 death verdict months later faced murder charges himself, what he did know should have
12 compelled him to immediately initiate a case-by-case analysis of Jacobs’ discovery
13 practices. Though, it was seemingly not enough, there was yet one more letter that should
14 have stirred Rackauckas to take action
15 People v. Kenneth Clair
16 On June 29, 2000, one year after sending his initial letter to Druliner, Jacobs sent off
17 additional letters to the AG. First he sent a letter to Deputy AG Carl Horst (with a copy
18 sent to his boss Senior Assistant AG Gary Schons) to express his anger with having to turn
19 over discovery in the capital case of People v. Kenneth Clair. Jacobs did not pull his
20 punches, recommending that a deputy DA from Orange County begin working on the case,
21 and stressing that if Horst “lack[s] the drive, the optimism, and the willingness to put in the
22 hard work to make certain that this case is affirmed on appeal, then perhaps [Horst} should
23 consult with [his] supervisor about having someone else in [his] office take over the lead on
24 this case.” (Jacobs’ Letter to Horst, attached herein as Exhibit Ml 1.) Jacobs also wrote a
25 letter to Chief Deputy AG for Legal Affairs, Peter Siggins, in which he complained that he
26 “still see[s] no change in the overall lack of aggressiveness and thoroughness in the27 handling of a number of these cases.” (Jacobs’ Letter to Siggins, attached herein as Exhibit28 Nil.) These letters caused Schons to send a letter to Rackauckas on July 6, 2000 defending
46
Defense Reply Brief -
1 Horst, emphasizing a prosecutor’s discovery obligations, and explaining the position that in
2 Habeas litigation the AG’s job is to defend the warden and not the OCDA. (Schons Letter
3 to Rackauckas, attached herein as Exhibit 011.) Schons wrote:
4Mike [Jacobs] may chafe because of the discovery required of your office inthis and other capital cases. But the reality is that if we want to steer these
6 cases successfully though federal courts ..., we are going to have to showeverything we have to the petitioner. (Ibid.)
Jacobs received a copy of Schons’ letter, apparently from Rackauckas, and replied to
8 Schons on August 9, 2000 to say that he was “sorry if the tone and intent of [the] letter has
been misconstrued.” (Jacobs’ Letter to Schons, attached herein as Exhibit P11.) But Jacobs
10 certainly was unwilling to back down from his position on discovery:
11
12 You mentioned in your letter that to be successful in federal courts, you felt itwould be necessary to “show everything we have to the petitioner.”
13 Assuming that you are referring to habeas litigation, I must admit that this is a
14 new concept for me and not the course that I have seen pursued in other cases...“ (Ibid.)
15 On April 2, 2001, Senior DA Bruce Patterson sent a letter informing Jacobs that he
16 was being fired. (Exhibit Gil.) Among the reasons for the termination was that “Mr.
17 Rackauckas was upset and embarrassed” by letters Jacobs sent because they could “threaten
18 to hamper the working relationship” with the AG. Ibid.) The termination letter went on to
19 complain that the problem with Jacobs’ letters was that the tone of them was “insulting and
20 demeaning.” (Ibid.) Very tellingly, however, neither Rackauckas nor Patterson
21 expressed concerns about Jacobs’ stated commitment to keeping discovery from
22 habeas corpus counsel. (Ibid.) While the termination letter makes clear Rackauckas took
23 issue with the way Jacobs phrased his complaints with the AG, there was no indication in
24 the nine-page letter that he had any problem whatsoever with the way Jacobs was
25 conducting his cases. Ibid.)
26 During his testimony in Jacobs v. Rackauckas, Jacobs was asked directly about his27 statement in the August 9, 2000 letter in which Jacobs said the idea of showing “everything28
47
Defense Reply Brief
1 we have to the petitioner” was “a new concept for me.” (Reporter’s Transcript (Jacobs’
2 Testimony), Jacobs v. Rackauckas, Super. Ct. Orange County, No. O2CCO 1476, p. 1282,
3 Attached Herein as Exhibit Qi 1.) Rackauckas’s counsel asked whether Jacobs was being
4 completely serious when he suggested that complete discovery to habeas counsel was a
5 “new concept to me.” (Ibid.) Counsel asked: “Mr. Jacobs, aren’t you being a little sarcastic
6 here?” (Ibid.) Jacobs reiterated on the stand that he was not being sarcastic in the slightest.
7
8 Q. ... Did you agree that you should show everything we have to thepetitioner?
9 A. No. My position was that shouldn’t happen in a capital case.Q. Right. And you wanted Mr. Schons to know that you disagreed with that
10 approach, didn’t you?11 A.Yes. (Id.at 1283.)
12In hindsight, it is unclear whether Rackauckas and his counsel were on the same
13page about how the OCDA views its discovery obligations in habeas litigation. History
14suggests that Rackauckas, Jacobs, and his entire office were very much in accord with the
15battle waged to stop Payton from getting informant Escalera’ s informant index information.
16Nonetheless, in a trial (of far less consequence than any criminal litigation, where liberty
17hung in the balance), it seems Rackauckas may have been willing to have Jacobs perceived
18as a dishonorable outlier who refused to recognize his discovery obligations to death
19penalty defendants.
20If, indeed, Mr. Rackauckas believed Jacobs’ answers ran counter to the office’s
21fundamental values, with all that he had learned about the conduct of his former chief of the
22homicide unit, the leader of the office should have recognized it was imperative to
23immediately begin an investigation of Jacobs’ cases. It never happened, and the local
24justice system may never fully recover from the refusal to honor that responsibility. One is
25only left to wonder whether Rackauckas was the slightest bit concerned that Jacobs was so
26adamant that the AG should not provide full disclosure in the case of People v. Clair.
27Although the case did not involve a jailhouse informant, once again, evidence would
28
48
Defimse Reply Brief
1 emerge about Jacobs’ willingness to conceal relevant evidence bearing on a witness’
2 credibility from both the defendant and the jury.
3 People v. Kenneth Clair
4 On November 15, 1984, someone entered the home where Linda Rogers resided,
5 murdered her, and took several items. (People v. Clair, 2 Cal.4th 629, 646.) She had been
6 staying in the home of Margaret Hessling and Kai Henriksen as a live-in babysitter. (Ibid.)
7 Kenneth Clair had been squatting in the abandoned house next door and the week before the
8 murder had been arrested for a previous burglary of the Henriksen/Hessling home. (Ibid.)
9 On August 15, 1985 the OCDA charged Clair with murdering Rogers along with special
10 circumstances. (Id. at 644-645.)
11 Another Hidden Agreement and More Impeachment Evidence Suppression
12 The following year, while Clair was awaiting trial, Margaret Hessling was arrested
13 and charged with three felonies: two counts of obtaining government aid by fraud and one
14 count of perjury for knowingly making false statements. (Hessling Complaint from People
15 v. Hessling, Super. Ct. Orange County, No. NF86101 158, filed Aug. 1, 1986, p. 1, attached
16 herein as Exhibit Ri 1.) Hessling had been receiving child support and food stamps from
17 the government but, as she admitted to OCDA Investigator Frank Lopez, she had secretly
18 taken ajob under a fake name and social security number so that she could earn money
19 while fraudulently continuing to receive thousands of dollars in benefits. (Interview of20 Hessling from People v. Hessling, Super. Ct. Orange County, No. NF86 101158, dated April21 14, 1986, attached herein as Exhibit Si 1; Habeas Petition in Clair v. C’alderon, C.D. Cal.,22 No. CV 93-1133, dated Sept. 15, 1994, pp. 67-68, attached herein as Exhibit Tii.) She was23 arraigned on November 6, 1986 and released on her own recognizance. (Felony Docket in24 People v. Hessling, Super. Ct. Orange County, No. NF86 101158, p. 4, attached herein as25 Exhibit Ui 1.) The case was continued until January 15, 1987. (Record of Proceedings in26 Court in People v. Hessling, Super. Ct. Orange County, No. NF8610 1158, p. 2, attached27 herein as Exhibit Vii.) Attached to the felony docket were handwritten notes created by28 the court with the heading “Record of Proceedings in Court.” (Ibid.) Those records
49
Defense Reply Brief
1 indicate that the case was continued to January because “the case might involve a possible
2 disposition.” (Id. at p. 2.) At the January hearing it was continued to March 12, 1987
3 because the “defendant has special information.” (Id. at p. 3.) In March it was then
4 continued to June 18, 1987 and in June it was continued to July 9, 1987. At the July
5 hearing there was yet another continuance with court records stating “special info.—in
6 progress.” (Ibid.)
7 Lest there be any doubt what “special info.—in progress” meant, one of the OCDA
8 Investigators wrote in Hessling’s welfare fraud file: “major witness in 187 PC being
9 prosecuted by Mike Jacobs” as well as “suspect very important to case.” (Reporter’s
10 Transcript (Frank Lopez Deposition), April 9, 2001, p. 1413, attached herein as Exhibit
11 Wi 1.) But even without this note it is clear Hessling’s case was being manipulated
12 according to her work against Clair. For example, when the record “special info.—in
13 progress” was written by the court in Hessling, the court in People v. Clair was finishing
14 voir dire. (Reporter’s Transcript in People v. Clair, Super. Ct. Orange County, No. C-
15 57572, July 9, 1987, attached herein as Exhibit Xli.) And one week later, on July 16,
16 1987, Hessling testified against Clair providing key evidence linking Clair with objects
17 taken from the home. (Exhibit Ti 1, at pp. 67-68.) Clair was convicted on July 28, 1987
18 and sentenced to death by the jury on August 6, 1987. (Habeas Petition in Clair v.
19 Calderon, Cal., No. 5169188, dated Dec. 19, 2008, p.2, attached herein as Exhibit Yli.) A
20 week later, on August 13, 1987, Hessling had her next hearing in which the court records
21 read that Hessling “has done well”—presumably with her special information. (Exhibit
22 Vii, at p. 3.) Her case was continued to September 17, 1987, then to October 29, 1987,
23 and finally to December 17, 1987. (Id. at pp. 3-4.) On December 4, 1987 the court
24 sentenced Clair to death. (Exhibit Yll, at p. 2.) Less than two weeks later, when
25 Hessling’s case was called again, she was finally given an offer to resolve the case.
26 (Exhibit Vii, at p. 4.) The note from that day read: “Defendant is “SPECIAL INFO”
27 person — if defendant brings $500 on 3/17 case will settle for misd.” (Ibid.) Again,
28 Hessling was charged with three felonies for committing perjury and fraudulently obtaining
50
Defense Reply Brief
1 $5,564 in government benefits and as a result of her testimony was offered a single
08/15/85 Clair charged with specialcircumstances murder.
09/01/86 Hessling charged with threefelonies: two counts of welfarefraud and one count of perjury.
11/06/86 Hessling arraigned andreleased on own recognizance.Case continued because“possible disposition.”
0 1/15/87 Hessling’s case called andcontinued because “defendanthas special information.”
03/12/87 Hessling’s case called andcontinued.
06/18/87 Hessling’s case called andcontinued.
06/22/87 Voir dire begins in Clair’s case
07/09/87 1-lessling’s case called andcontinued with court recordsindicating: “special info.—inprogress.”
07/16/87 Hessling testifies against Clair.
07/28/87 Clair convicted of murder withthe special circumstance ofburglary.
People v. Clair, 3Cal.4th 629, 646.ExhibitRil,atp. 1.
People v. Hessling Exhibit Vii, at p. 2.
People v. Hessling Exhibit Vii, at p. 2-3.
People v. Hessling Exhibit Vii, at p. 3.
People v. Hessling Exhibit Vii, at p. 3.
Reporter’sTranscript in Peoplev. Clair, Super. Ct.Orange County, No.C-57572, June 22,1987, attachedherein as Exhibitzil.
People v. Hessling Exhibit Vii, at p. 3.
Exhibit Til, at pp.67-68.Exhibit Yli, atp. 2.
misdemeanor and a $500 fine. (Exhibit Vii, at p. 4; Exhibit Ti 1, at pp. 67-68.)
The following chart illustrates just how intertwined Hessling’s case was with Clair’s:
s) referencedPeople v. Clair
People v. Hessling
2
3
4
5
6
7
8
9
10
ii
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
People v. Clair
People v. Clair
People v. Clair
51
Defense Reply Brief
1 08/06/87 Clair sentenced to death by the People v. Clair Exhibit Yl 1, at p. 2.
2jury.
08/13/87 Hessling’s case called and People v. Hessling Exhibit Vii, at p. 3.3 continued. Court records
indicate she has “done well”with her special information.
5 09/17/87 Hessling’s case called and People v. Hessling Exhibit Vii, at p. 3.continued.
6 10/29/87 Hessling’s case called and People v. Hessling Exhibit Vii, at p. 4.7 continued.
12/04/87 Clair sentenced to death by the People v. Clair Exhibit Yl 1, at p. 2.8 court.12/17/87 Hessling’s case called and People v. Hessling Exhibit Vii, at p. 4.
offer conveyed. Court records10 state: “Defendant is11 “SPECIAL INFO” person — if
defendant brings $500 on 3/1712 case will settle for misd.”13
14 Obviously, receipt of such a substantial benefit in exchange for testimony would
15 have permitted significant impeachment, allowing Clair to probe Hessling’s incentive to
16 tailor her testimony to fit the prosecution’s theory of the case. Furthermore, the perjury
17 charge levied against Hessling went directly to her honesty and veracity on the stand.
18 However, Clair’s attempts to impeach on these issues were repeatedly stymied by Jacobs.
19 When Clair attempted to introduce the perjury charge Jacobs successfully objected,
20 arguing 1-lessling could not be impeached with it, because she had not yet been convicted.
21 (Exhibit Til, at pp. 66-69.) Of course, the only reason her case was still pending was
22 because the OCDA was purposefully delaying the proceedings until she had completed her
23 testimony against Clair—a point Jacobs would certainly not disclose. The manipulation of
24 the timing of the resolution on Hessling’s case relative to her testimony in Clair allowed
25 Jacobs to hide critical impeaching evidence from the jury.
26 As for the substantial benefits Hessling was receiving and was set to receive on her I
27 case, Jacobs did not disclose any information in discovery that Hessling would receive a
28 benefit for her testimony. (Exhibit Ti 1, at p. 66.) Jacobs also failed to turn over any of
52
Defense Reply Brief
1 Hessling’s above-referenced “Record of Proceedings in Court” which well documented the
2 history of continuances in Hessling until she could testify against Clair. Ibid.)
3 Fortunately, Clair did have access to a separate felony docket sheet from North County
4 Municipal Court which also mentioned continuances because of Hessling’s “special
5 information.” (Id. at p. 69.) However, when defense counsel tried to introduce this
6 evidence Jacobs objected saying this was “not even hearsay” and the court agreed that it
7 was inadmissible. (Ibid.) While arguably a lawful objection, Jacobs had an ethical
8 obligation to reveal that the hearsay statement was accurately reflective of the fact that
9 Hessling was a critical witness in Clair, and that this fact had been shared with the court
10 handling Hessling’s case.
11 But Jacobs went further than even keeping evidence of the prosecution’s deal with
12 Hessling away from the jury; he appears to have actually prompted Hessling into actively
13 lying to the jury. (Id. at p. 68.) On the stand at Clair’s trial, in response to Jacobs’
14 questions, Hessling stated that, while she did have an open welfare fraud case, no one had
15 promised her any consideration in exchange for her cooperation and testimony. (Ibid.)
16 Jacobs also asked her why the welfare fraud case had been pending for so long to which she
17 replied that she was “getting enough money put together so I can make restitution.”
18 (Reporter’s Transcript in People v. Clair, Super. Ct. Orange County, No. C-57572, July 16,
19 1987, p. 1685, attached herein as Exhibit A12.) This prompted defense counsel on cross
20 examination to ask:
21 Q. Didn’t you get continuances because you told the court that you had
22special information for the district attorney?A. No, sir. (Id. at p. 1677.)
23 Just as in Payton, in which key informant Escalera’s extraordinary resolution not so
24 miraculously appeared shortly after him giving testimony helpful to the prosecution, the
25 same was true for witness Hessling. As stated above, less than two weeks after Clair was
26 sentenced to death, the OCDA was willing to state on the record that Hessling was free to
27 accept a misdemeanor if she paid just $500; her three felony charges would disappear in the28 process. It is noteworthy that despite her claims on the stand in Clair that her case was
53
Defense Reply Brief
1 being continued so that she could save money for restitution, as of Clair’ s habeas petition
2 filed in 1994, Hessling had still not paid any restitution. (Exhibit Ti 1, at p. 68.)
3 Pauline Flores
4 There were no witnesses to the crime who could identify Clair. In fact the only
5 people who may have seen the perpetrator were two of Margaret Hessling’s minor children
6 who soon after the crime told law enforcement the perpetrator was white (Clair is black).’3
7 (Exhibit Yl 1, at pp. 16-19.) There was also no physical evidence introduced at trial linking
8 Clair to the crime. (Exhibit Ti 1, at pp. 56-57.) This means that to win the conviction and
9 death sentence Jacobs had to rely on Hessling’s testimony describing objects taken from her
10 home, Clair’s ex-girlfriend Pauline Flores’ testimony that she saw Clair with those same
ii objects, and Clair’s own statements he made to Flores while Flores was secretly wearing a
12 recording device.
13 There were plenty of reasons why Jacobs should have been reluctant to rely on
14 Flores’ testimony to prove Clair possessed the stolen property, not the least of which being
15 that the day she claimed to be with Clair and see the property was a little over one week
16 after being discharged from the hospital following a “near fatal” brain injury/ brain
17 surgery.’4 (Reporter’s Transcript in People v. Clair, Super. Ct. Orange County, No. C-
18
19
20‘ One of those children, Jarrod Hessling, would go on to testify at the preliminary hearingthat the perpetrator was black despite telling an investigator shortly after the murder: “He
21 was a white man, like you and me.” (Reporter’s Transcript (Preliminary Hearing) in People
22v. Clair, Super. Ct. Orange County, No. C-57572, July 1, 1985, p. 35, attached herein asExhibit B 12; Exhibit Ti 1, at p. 1.) In a 2004 declaration, Jarrod Hessling explained that
23 Kai Henriksen, who was in a white supremacist motorcycle gang, pressured the then five-year-old boy into changing his story. (Jarrod Hessling Declaration, dated August 6, 2004,24p. 2, attached herein as Exhibit C 12.) Jarrod Hessling now believes that Henriksen, who
25 had previously been convicted of manslaughter, likely had someone from his gang killRogers after Rogers threatened to call Child Protective Services to report Henriksen selling26 methamphetamine out of the home. Ibid.)
2714 Flores would later recant her testimony in a declaration, stating that not only was she not28 with Clair on the night in question, she was not even capable of leaving the house for “at
54
Defnse Reply Brief
1 57572, July 20, 1987, p 1815, attached herein as Exhibit F12; Exhibit D12, at p. 1.) But the
2 reason most relevant to this litigation is that it appears Flores received a benefit for her
3 cooperation and testimony—a benefit which, when examining the trial transcript, was
4 clearly not turned over to Clair in discovery.
5 In a 2001 declaration Flores stated:
6 I had an outstanding bench warrant for my arrest when I offered to try to tape
7record a statement from Kenny .... The detectives took care of my warrant inexchange for me wearing the tape recorder. (Exhibit E12, at p. 5.)
8 This would clearly be evidence that should have been turned over in discovery for
9 impeachment purposes. But not only was it withheld from the defense, but Jacobs allowed
10 Flores to testify repeatedly that she was not given a benefit on any case in exchange for her
11 cooperation. The following exchanges took place between Jacobs and Flores on direct
12 examination at trial and were typical of her testimony throughout the trial and preliminary
13 hearing:
14
1 Q. Okay. And were you basically asked to wear a tape recorder, a microcassette, and have a conversation with Mr. Clair?
16 A. Yes, I was.Q. Did you agree to do that?
17 A. Yes,Idid.18 Q. Why did you agree to do that?
19A. Just to find out what was going on.
20 Q. Did — during your — the time that you talked to Investigator Buckles, did he— other than asking your cooperation, did he do anything to get you to21 cooperate with him?
22 A. No he didn’t.
23Q. Were you paid any money?
24 least two to three weeks” after being discharged from the hospital. (Flores Declaration,25 dated June 1, 2005, p. 1, attached herein as Exhibit D12.) During this period she was
occupied by relearning how to walk and talk and was unable to recognize the names and26 faces of even immediate family members. Ibid.) She now says she wore a wire and27 testified against Clair because law enforcement exploited her anger at Clair for being
physically abusive and for sleeping with one ofher friends while she was in the hospital.28 (Exhibit D12; Flores Declaration, dated July 6, 2001, attached herein as Exhibit E12.)
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Defense Reply Brief
1 A.No.
2 Q. Were you given anything in returnA.No.
3
4(Flores mentions that law enforcement flew her to San Jose at one pointbecause she was afraid of Clair’s cousins and also that one of the investigators
5 gave her a book.)Q. Anything else they did for you?6 A. Nothing else.
7 Q. Buy you a coke, something?A. Yeah. Maybe once in a while.8 Q. That’s it?
9 A. Yes. (Reporter’s Transcript in People v. Clair, Super. Ct. Orange County,No. C-57572, July 20, 1987, pp. 1789, 1802-1803, attached herein as Exhibit G12.)10 Assuming that Flores was accurate in her 2001 declaration, this would be yet anotherinstance of Jacobs, and prosecutors at the OCDA in general, failing to disclose secret
12benefits given to witnesses in exchange for their testimony. And it is clear that this benefit
13was never disclosed; after all, if Jacobs honored his discovery obligations and told Clair’s14counsel that Flores had received a very tangible benefit in one of her cases in exchange for15
16her cooperation, defense counsel would have impeached her both to show she was lying and
17to prove the truth of the matter asserted. Instead the lies were allowed to stand and the jury
18was left believing that Flores had, for purely altruistic reasons, decided to wear a wire on
19multiple occasions and then testify simply “to find out what was going on.” (Id. at p. 1789.)
20 Reading Flores’ declaration naturally leads to one of three possible conclusions. The
21 first is that Flores was mistaken and that her warrants were never “taken care of’ by police
22 in exchange for her cooperation. While possible, it seems unlikely given that this type of
23 secret consideration so closely fits a pattern that exists not only across other cases by Jacobs24 and OCDA prosecutors, but by Jacobs in this very case with Margaret Hessling. The next25 possible conclusion is that there was a benefit given by law enforcement but that Jacobs26 was unaware of it. At best this makes Jacobs passively complicit in Flores’ perjury and the27 prosecution’s discovery violations; it is obviously the prosecutor’s obligation to learn28 necessary facts from law enforcement, to turn over those facts when obligated by discovery
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Defense Reply Brief
1 requirements, and to prevent prosecution witnesses from perjuring themselves. However,
2 this conclusion seems unlikely as well. After all, it is unlikely that an experienced homicide3 prosecutor—particularly Jacobs, considering his history—forgot to ask the law enforcement
officers who worked with the star witness whether or not that witness received any benefit.
Instead, given the pattern of behavior observed in this and numerous other cases, the third6 conclusion is sadly by far the most likely: Jacobs knew about the benefit all along and
deliberately withheld it to gain a tactical advantage.8
Questions About Clair’s Responsibility Emerge Via DNA Tests9
In 2007, the OCDA ran DNA samples found at the scene of the 1984 murder of10
Elizabeth Hoffschneider. (Welbom, 0. C. Cold Case Murder Defendant Dies in Canada,
12O.C. Register (May 14, 2010).) Hoffschneider had been murdered in Huntington Beach,
13California in a similar fashion to Linda Rogers. (Ibid.) This led to the arrest of Gerald Su
14Go, a convicted rapist living in Canada. (Ibid.)
15 Subsequently, an investigator with the OCDA delivered DNA samples taken from
16 the Rogers crime scene to a lab to see whether they matched either Clair or Gerald Su Go.
17 (Welborn, Murder Mystery. DNA From Santa Ana Slaying Does Not Match Man on Death
18 Row, O.C. Register (Jan. 5, 2008).) Neither man’s DNA was found in the samples. (Ibid.)
19 But rather than release Clair or even reinvestigate his case, Assistant DA David Brent told
20 reporters that “{tjhere is nothing that changes the jury verdict.” (Ibid.) According to the
21 O.C. Register, the OCDA was refusing as of 2008 to even compare the DNA samples
22 against the FBI’s database, because to utilize the database, the OCDA would require them
23 to assert that to do so was necessary to locate the actual culprit. At that time, at least, the
24 OCDA was unwilling to admit even the possibility that they convicted an innocent man.
25 Brent added: “If we felt Mr. Clair was innocent, it’s something we wouldn’t turn our back
26 on.” Ibid.) But, the reality, made more clear in the past two years, is that the justice
27 system should little trust a “feeling” by a local prosecutor or member of law enforcement
28 about whether a defendant is innocent or his case should be further investigated—
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Defense Reply Brief
1 particularly when the trial prosecutor on the case was Michael Jacobs. No one should have
2 realized this point better than District Attorney Rackauckas, having personally studied
3 Jacobs’ energized commitment to keeping evidence from habeas counsel on this very case:
4 People v. Clair.
5 Clair continued to litigate this issue, and ultimately learned that the OCDA located a
6 matching profile from DNA found on Rogers and a suspect in another case. (Second DNA
7 Report, dated May 18, 2010, attached herein as Exhibit G12.) Deputy District Attorney
8 Scott Simmons told Clair’s counsel that the identified individual was too young at the time
9 of the murder to have committed the crime. (Reporter’s Transcript (DNA Hearing) from
10 People v Clair, Super. Ct. Orange County, No C-57572, Nov. 5, 2010, p. 8, attached herein
11 as Exhibit H 12.) However, the DNA could be linked to a paternal relative of that
12 individual, and, thus the defense inquired as to whether the OCDA would be investigating
13 those relatives. (Ibid.) According to counsel for Clair, Simmons failed to respond to
14 defense requests for an update, after initially indicating the office would continue to
15 investigate. (Id. at p. 9.) The defense then filed a motion to find out the identity of the
16 individual so that they could conduct their own investigation. (Ibid.) Simmons opposed
17 this request, asserting that it was more important to protect the privacy of those potential
18 suspects:
19 I guess the concern the people have is privacy rights. Just because in the
20database it is very limited in the Y-STR. I believe — and I am talking off thetop of my head. I think it is six out of 11, or — I shouldn’t state because I
21 don’t know. But it is non-discriminating. It is a very common profile. (Id. at
22 p. 12.)
23 In fact, according to the report the DA’s expert sent Simmons earlier that year, when the
24 profile was ran against a national database—it is unknown if that was the F.B.I. database—
25 results indicated that the DNA profile was found in approximately 16 out of 11,393 people.
26 (Exhibit G12.) On February 18, 2011, the defense argued a motion asking for 1) “the
27 identification of the person whose profile matched the ySTR DNA, 2) the underlying date
28 from the DNA, and 3) the results of any investigation regarding potential suspects who may
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Defense Reply Brief
1 also possess that profile.” The Honorable Thomas Goethals denied the request for
2 disclosure of the identified individual, but ordered compliance with the other two requests.
3 It is unknown what investigative steps have been taken in the past nearly five years, but in
4 view of the troubling history of People v. Clair, those efforts should have been
5 monumental.
6 In sum, the handling of Clair, from beginning to what may be a very troubling end,
7 highlights why the OCDA cannot be reasonably relied upon to turn over mitigating
8 evidence.
9 CONCLUSION
10 For the reasons stated herein, as well as the previously filed Motion to Dismiss, it is
11 respectfully requested that the motion to dismiss the death penalty be granted.
12DATED: October 15, 201513 Respectfully submitted,
14 FRANK OSPINOPublic Defender
15 Orange CountyTRACY LESAGE
16 Assistant Public Defender
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18 SCOTT SANDERSAssistant Public Defender
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Definse Reply Brief
