People v. Dekraai - Recusal Motion

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

MOTION

Defendant Scott Dekraai hereby moves this Court for an order recusing the Orange

County District Attorney's office from prosecuting this case. Said motion is based upon

this notice and motion, these Points and Authorities, Penal Code section 1424, Dekraai's

state and federal right to due process and a fair trial, the exhibits, the attached declaration

of counsel, the previously filed Motion to Dismiss the death penalty and that motion's

attached exhibits, and the testimony and evidence presented at the hearing on the motion.

It is requested that the previously filed Motion to Dismiss be incorporated by reference and

all analysis and argument contained therein be considered in the Courts ruling on this

motion.

///

///

Recusal Motion - Dekraai

2

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

STATEMENT OF THE CASE

Defendant Scott Dekraai was arrested on October 12, 2011 and taken into custody.

On October 14, 2011, the prosecution filed a complaint against Dekraai in case number

11CF2781.2 On the same date, Dekraai appeared for arraignment on the Complaint while

represented by private attorney Robert Curtis. The arraignment was continued at Dekraai's

request to October 24, 2011.3

On January 24, 2012, the prosecution first provided discovery related to Dekraais

contact with Inmate F.4 According to that discovery, on October 19, 2011, at

approximately 2:30 p.m., members of the Dekraai prosecution team, which included

Assistant Orange County District Attorney (OCDA) Dan Wagner and Senior Deputy

District Attorney Scott Simmons, OCDA Investigator Bob Erickson, Seal Beach Police

Department (SBPD) Detective Gary Krogman, and Orange County Sheriff's Department

(OCSD) Deputies Ben Garcia and Bieker, met with an Orange County Jail inmate named

Inmate F. at the Orange County Jail. Inmate F. was questioned about statements made to

him by Dekraai while the men were incarcerated together at the Orange County Jail.

After interviewing Inmate F., several members of the prosecution team met with

OCSD personnel and requested that a covert audio recording device be installed in

2 An indictment against Dekraai was filed on January 17, 2012, under the current case number. 3 Pursuant to Evidence Code section 452, subdivision (d)(1), Dekraai respectfully requests the Court take judicial notice of the minute orders from October 14 and October 24, 2011, in case number 11CF2781. 4 Dekraai is honoring the prosecutions previous request to use Inmate F. in place of his actual name. Additionally, similar language is being used in place of other individuals names mentioned in this brief, who have pending matters, where facts related to their case are discussed. Oscar Moriel, another informant referenced in this motion, is being identified by his actual name as prosecutors have revealed his identity in discovery in multiple cases. Moriel has also testified in three trials using his complete name.


3

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Dekraai's cell at the Intake and Release Center. The device was installed on October 19,

2011, and began recording that day at 5:37 p.m. The device recorded conversations in

Dekraai's cell from that date and time until October 25, 2011, at 4:39 a.m.5 The device was

removed from Dekraai's cell on October 25, 2011, and the recordings were copied to a

compact disc. The recording device captured a number of conversations between Dekraai

and Inmate F.

Dekraai's counsel, Assistant Public Defender Scott Sanders, filed an informal

request for discovery on October 16, 2012, seeking discovery exclusively related to Inmate

F. (Exhibit A.6) The prosecution had provided the discovery requested in paragraph one.

None of the other requested items had been discovered. (Exhibit A.)

On October 19, 2012, Sanders and Wagner7 spoke about the informal discovery

request. Wagner said he would not provide the requested discovery, as he did not intend to

call Inmate F. as a witness. Sanders stated that, nonetheless, the defense intended to call

Inmate F. at a motion to suppress Dekraai's recorded conversations with Inmate F. as

violative of Dekraai's Sixth Amendment right to counsel. Wagner reiterated that he would

not provide the requested discovery absent an order from this Court. (Exhibit A.)

On December 28, 2012, Dekraai filed a Motion to Compel Discovery, seeking the

discovery identified in the informal discovery request. (Exhibit C.)

On January 18, 2013, the prosecution filed its Opposition to Defendants Motion to

Compel Discovery, arguing the Court should not order disclosure of any of the identified

items within the discovery motion. (Exhibit D, p. 7.)

5 On October 24, 2011, Dekraai appeared in court and the Public Defender was appointed to represent him. 6 In this brief and the attached declaration of counsel Dekraai is using and citing to the same exhibits attached to the Motion to Dismiss the death penalty. The exhibits that are only found in this motion begin with Exhibit A8. 7 Individuals referenced in this motion will hereafter be referred to only by their last names for clarity and brevity, and not out of disrespect.


4

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

On January 24, 2013, Dekraai filed a Reply to the Prosecutions Opposition to

Defendants Motion to Compel Discovery. (Exhibit E.)

On January 25, 2013, this Court heard oral argument on Defendants Amended

Motion to Compel Discovery. This Court ordered the items requested in Defendants

Motion to Compel Discovery.

On February 8, 2013, the prosecution provided 45 DVDs. The DVDs included

5,490 pages related to Inmate F. There are an estimated total of 1,936 audio and video files

with an approximate total length of approximately 970 hours. On February 13, 2013, the

prosecution provided a single CD with 271 pages related to Inmate F. On March 21, 2013,

the prosecution provided 68 CDs, including one with 2,479 pages of discovery related to

Inmate F. On April 5, 2013, the prosecution provided 13 pages of discovery related to

Inmate F. On April 11, 2013, the prosecution provided 14 pages of discovery related to

Inmate F. On June 7, 2013, the prosecution provided 3 CDs and 16 pages of discovery

related to Inmate F. On September 27, 2013, the prosecution provided a single one page

memorandum related to Inmate F.

On January 31, 2014, Defendant filed a Motion to Dismiss, seeking an order from

this Court prohibiting a penalty phase in this case, should Dekraai be convicted of the

special circumstances murders alleged in the indictment, or alternatively, an order

dismissing the special circumstances allegations.

//

//


5

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

SUMMARY OF FACTS AND BASES FOR RECUSAL

Scott Dekraai was arrested for the murder of eight people and attempted murder of

another person in Seal Beach on October 12, 2011. Several days later, a veteran custodial

informant who was facing two potential life sentences elicited incriminating statements

from Scott Dekraai at the Orange County Jail. This occurred after Dekraai and Inmate F.

were moved into adjoining cells. Inmate F. shared notes documenting his conversations

with his lead handler, OCSD Deputy Ben Garcia. Garcia spoke by telephone with DA

Investigator Erickson and then met the next day with members of the prosecution team,

including Wagner and Simmons.

After the meeting with Garcia, the prosecution team spoke with Inmate F. off the

record. During that portion of the conversation, they purportedly received assurances that

Inmate F. was not seeking a benefit for his assistance but only helping because of his moral

outrage about the crime and his hatred of Dekraai. Once they began recording the

interview with Inmate F., he restated the same motivation for providing assistance. During

the recorded portion of the interview, none of the six members of the prosecution team who

were present asked a single question that would have cast doubt upon the veracity of

Inmate F.s stated motivations for providing assistance or revealed that Inmate F. had been

working in the jails for the government for more than one year.

Inmate F. stated that he asked Dekraai about the crime before Dekraai provided

incriminating statements. Members of the prosecution team knew that even in the absence

of specific direction by the government, Inmate F.s status both as an informant and as an

unsentenced defendant facing two life sentences, incentivized him to troll the jails for

information helpful to the government. As such, prosecution team members knew that

statements obtained in response to deliberate elicitation violated Dekraais right to counsel

under the Sixth Amendment. Nonetheless, having already reviewed Inmate F.s notes in

violation of Massiah, the prosecution team continued to question Inmate F. in order to

obtain as much information as possible about what he had learned from Dekraai.

The prosecution team ultimately received a wide range of information about


6

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Dekraai, his mental health issues, and the crime. However, they decided to go even further

by questioning Inmate F. about Dekraais defense strategies, including what plea he was

considering in the case.

Subsequent to the interview, a recording device was placed in Dekraais cell which

captured additional incriminating statements made after virtually non-stop efforts by

Inmate F. to ingratiate Dekraai and win his confidence.

After being informed of Dekraais potential defense strategies and mental health

issues that could be relevant to the defense, the Dekraai prosecution team initiated a

separate and aggressive effort to obtain Dekraais psychological records, which included

making contact with Dekraai and asking for a release of his psychological records, even

though he was charged and had counsel at the time. After that effort failed, the prosecution

obtained a search warrant without the appointment of a special master for the records based

upon a misleading affidavit. The records were seized despite a court order directing the

prosecution not to take possession of the records until the court ruled on the legality of the

search warrant. The records were then taken to the court where they remain.

The prosecution turned over the evidence related to Inmate F. approximately three

months after the interview was conducted and recordings were obtained. However,

Ericksons report regarding the interview of Inmate F. continued to hide the prosecutions

knowledge of Inmate F.s informant background. The reports suggested that what

transpired was simply a matter of coincidental contact between inmates. However,

information known to defense counsel and its own investigation about Inmate F. raised

suspicions that the prosecution was holding back significant information about Inmate F.

The defense requested additional evidence informally and later brought a formal motion for

discoveryafter Wagner refused to turn over any evidence related to Inmate F.s

background.

Responding to Dekraais Motion to Compel Discovery, Wagner submitted a

declaration in support of his opposition, in which he claimed the prosecution would not

give Inmate F. any consideration for his efforts and reiterated Inmate F.s statement that he


7

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

was not seeking any benefit. Wagner made this statement without revealing Inmate F.s

criminal and informant history, which would have impeached the informants stated

motives and suggested a conspiracy of concealment by the entire prosecution team initiated

before their interview of Inmate F. In fact, evidence and information in the governments

possession revealed Inmate F. to be a) a former Mexican Mafia leader who had directed

violence against fellow inmates; b) an inmate on the verge of federal RICO prosecution

because of his role in the Mexican Mafia, who avoided that prosecution because he was

permitted to become a government informant; and c) a defendant who was seeking to be

released from custody as soon as possible and trained to believe that the more valuable

assistance he provided the greater the benefit he would receive in his pending cases.

But the concealment did not end there. Wagner waited until eight months after the

discovery hearing to reveal a memorandum, entitled Informant Assistance, sent in

November 2011 by his investigator to Deputy DA Erik Petersen. Petersen, who is the

prosecutor assigned to Inmate F.s two Third Strike cases, and had begun using him as a

custodial informant after obtaining a conviction in one of the cases. The Informant

Assistance memo contradicted Wagners representations designed to convince the Court

not to order discovery, and showed that the Dekraai prosecution team very much wanted

Inmate F. to receive consideration for his assistance in the instant matter. The letter also

directed Petersen not to reveal Inmate F.s assistance in Dekraai in any other cases.

After this Court ordered discovery, Wagners interviews of Inmate F.s handlers

provided additional evidence that Wagner remained steadfastly committed to concealing

information that would reveal a) additional evidence of informant activities by Inmate F.,

b) potential Massiah violations in other cases, including a special circumstances gang

murder case, People v. Inmate I., c) the role of Petersen and potentially others in those

violations, and d) evidence that Petersenlike Wagnerhad concealed proof of Inmate

F.s informant background so that he could also unlawfully introduce statements by a

defendant in a murder case.

There was more to be learned about a lawless custodial informant program and the


8

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

prosecutions stunning lack of respect for its discovery obligations in other documents

found within the Court-ordered items. Discovery from the nine cases that was provided

per this Courts discovery order included varying quantities of notes written by a second

custodial informant named Oscar Moriel. Eight of the cases were connected to a multi-

agency investigation by the Santa Ana Gang Task Force, entitled Operation Black Flag,

which led to numerous local and federal prosecutions. The prosecutor on each of the local

cases and those cases arising from a related effort, Operation Smokin Aces, is Petersen.

Petersen was assigned 17 cases, involving 63 defendants, related to these operations. The

ninth case included per this Courts discovery order is People v. Inmate I., which is

referenced above.

The discovery from one of the nine cases, People v. Inmate E., contains the largest

quantity of Moriels notes. A study of names identified in that set of notes and the cases

associated with those names would eventually illuminate shocking misconduct specific to

the custodial informant program, and with implications that extend far beyond it.

Among the most important findings are those directly relevant to the claim that

Inmate F. made coincidental contact with Dekraai. It would eventually become clear

that there is rarely anything coincidental about the contact between informants and the

fellow inmates who make incriminating statements in the local jails. Rather, the Special

Handling Unit of the OCSD, often in coordination with local law enforcement and the

OCDA, coordinate the movements of inmates in order to facilitate the elicitation of the

statements. The problem for the criminal justice system is that the partners on the

prosecution team have been trained to work in unison to hide evidence that would reveal

these coordinated movements, despite Brady obligations and frequent Sixth Amendment

implications. In fact, there has been one constant in their documented efforts: the

prosecution never turned over a single report or note that revealed that they had

coordinated contacts between targeted inmates and the two informants, despite its obvious

relevance to both Sixth Amendment issues and the credibility of the informants rendition

of how statements were obtained.


9

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

The truth about these movements was not revealed by the government, which had

the obligation of candor. Instead it was the overactive pens of Moriel and Inmate F., which

unintentionally began to offer long delayed insights about the program. In selected entries

found within the notes of Moriel and Inmate F., it increasingly became clear how the

government makes its custodial informants so incredibly efficient and effective, revealing

systemic issues of deception, which further delegitimizes the Dekraai prosecution teams

description of the events surrounding the contact between Inmate F. and Dekraai.

But there was far more to learn from a study of the notes, the names identified in the

notes, and the cases associated with those individuals. Those cases are discussed in detail

within the declaration, attached herein as Exhibit A8, and within the Motion to Dismiss.

The following is an extremely brief overview: In People v. Vega, the prosecutor hid

critical informant notes that would have revealed a Massiah violation. He repeatedly

misled court and counsel about discovery issues, and suborned perjury from two veteran

detectives and Moriel. In People v. Rodriguez, the prosecutors acts of concealment

included hiding Moriels notes that would have revealed false claims of coincidental

contact, and evidence related to the Henry Cabrera cover up. The prosecutor also

suborned perjury from both detectives. In People v. Inmate I., the prosecutor again hid

evidence that would have showed the false claim that Moriel had coincidental contact

with both Inmate I. and Inmate F.8, hid evidence of third party culpability provided by

Moriel, and suborned perjury regarding Moriels notes. In People v. Camarillo, the

prosecutor suborned perjury from Moriel, and hid notes that would have impeached the

perjured testimony. In People v. Luis V., the prosecution team hid statements made by two

inmates to Moriel indicating that the defendant had not committed the crime for which he

was incarcerated. In People v. Lopez, at least one SAPD detective hid a statement received

8 There have been significant recent developments in People v. Inmate I. since the filing of the Motion to Dismiss. As discussed in detail at page 57, Petersen unintentionally admitted to discovery violations at the most recent hearing in People v. Inmate I., dated January 21, 2014.


10

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

by Moriel indicating that another individual was responsible for the victims death. In the

Henry Cabrera cases, several prosecutors and members of law enforcement engaged in a

conspiracy over several years to conceal evidence of an inaccurate expert opinion about

gang membership that supported two convictions, including one which led to a life

sentence. Prosecutors went so far as to not charge Cabrera in a gang homicide in order to

prevent Cabreras conviction from being overturned, to protect reputations of the

conspirators, and to hide the erroneous expert opinion and misconduct from other

defendants entitled to learn about what had taken place.

The stunning disinterest in defendants rights revealed in the study of these cases is

systemic and relevant to analyzing whether the Dekraai prosecution team can be

reasonably relied upon to hand over evidence helpful to the defense relating to issues of

aggravation and mitigation.

The tremendous and wide-ranging implications for the OCDA, its partner agencies,

fellow prosecutors and members of law enforcement, and the possibility that adverse

findings could result in recusal and the dismissal of the death penalty in this case, place any

local prosecutor who would replace Wagner and Simmons in an identical position. They

would face inordinate pressure to remain consistent with the clearly and repeatedly stated

OCDA position denying the veracity of the allegations, particularly in light of the

implications of the misconduct, which are discussed:

1) Assistant Deputy DA Dan Wagner, a supervising attorney and director of the

OCDAs homicide unit, led the Dekraai prosecution team in committing

numerous serious ethical and legal violations in the instant matterentering into

a conspiracy designed to mislead court and counsel beginning before their first

recorded interview with custodial informant Inmate F. on October 19, 2011, with

the intention that the conspiracy continue through pre-trial motions, trial and any

appeals in this case. Evidence of systemic efforts to mislead regarding Massiah

violations appeared in a study of People v. Vega. In that case, Petersen led a

similarly modeled conspiracy that achieved the ultimate goal: introduction of


11

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

statements in violation of Massiah, without counsel, the trial court, or the Court

of Appeal ever detecting the misconduct;

2) Wagner violated Brady by preventing disclosure of evidence related to Inmate F.

in other cases where he was a government informant. This was done to prevent

the Dekraai defense team from learning more about the scope of Inmate F.s

informant activities, and thereby revealing that the Dekraai prosecution team

was engaged in a cover up of those activities;

3) As the director of the homicide unit, Wagner and the Dekraai prosecution team

demonstrated wanton disregard for legal and ethical guidelines designed to

protect defendants due process rights. Wagners unwillingness to honor these

responsibilities strongly indicates that policies discouraging Brady compliance

and encouraging concealment have been actively promoted by OCDA training

and/or passively endorsed. Corroboration that the OCDA has created a culture

that devalues Brady and discovery obligations emerges from the study of the

numerous cases addressed in this motion and the Motion to Dismiss the death

penalty, where similarly shocking misconduct is detailed;

4) The OCDA led a persistent media campaign against Dekraai and his counsel to

blame them for the delays in this case that was shockingly misleading and

unethical considering their role in hiding evidence from the defense related to

Inmate F. and the custodial informant program;

5) The custodial informant program operates within the Orange County jails so that

local prosecution teams (the OCDA and local law enforcement assigned to

cases) are able to secretly direct informants to question fellow inmates and/or

facilitate contact with inmates to enable the elicitation of statements. This is

done without any concern about whether the statements are elicited in violation

of the Sixth Amendment or other laws. Evidence that the prosecution hides and

manipulates the discovery of informant evidence is discussed in the Motion to

Dismiss and the declaration attached to this motion. This evidence corroborate


12

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

that the OCDA understands, endorses, and at times, guides these practices, so

that they can receive the full benefit of introducing statements while

circumventing Massiah;

6) Members of the Special Handling Unit of the OCSD have admitted to having

regular communication with their custodial informantsInmate F. and Oscar

Moriel each worked for the government on a daily basis for a year. Between the

two informants, there are only 5 reports totaling 20 pages, which memorialize

statements made by these informants to members of OCSD. However, the

OCDA has failed to disclose to either Dekraai or any of the nine defendants

for whom discovery was also provided, a single report or note documenting

any direction given to informants by a member of the Special Handling

Unit. Prosecutors have also not discovered a single page of notes written by

members of the Special Handling Unit, despite this Courts order that would

have required their disclosure if they existed. The absence of any such discovery

confirms a policy of the Special Handling Unit, authorized by the OCDA, to

destroy notes and/or to discourage the documentation of statements made to or

received from custodial informants unless absolutely required to support a

possible prosecution. In view of the willingness of local prosecution teams to

elicit statements in violation of the Sixth Amendment, there is every reason to

believe that prosecutors have obtained information from scores of defendants

about their charged crimes and/or privileged communications between

defendants and their counsel, which were never revealed to counsel for the

defendants;

7) Members of the Special Handling Unit and local law enforcement who have had

contact with informants have been trained not to document the movements of

informants and their targets in reports or notes, so that prosecutors and their

informants can misrepresent their communications with targeted inmates as mere

coincidental contact. Nonetheless, these practices are now understood through


13

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

selected statements found within informant notes (primarily located within the

discovery in People v. Inmate E.) and corroborated by housing records. These

practices raise questions about the reliability of all prior convictions in which

custodial informants were called as witnesses. Evidence that would have

rebutted the coincidental contact scam was hidden in four litigated cases

discussed herein. Based upon the practices identified, all prior convictions

obtained by the OCDA based upon the use of custodial informant witnesses

should be reexamined for potential petitions for habeas corpus relief;

8) The Special Handling Unit regularly relocates informants and targets housed

within the Orange County jails into nearby housing locations, including

disciplinary isolation modules. The use of the Dis-iso scamplacing an

informant and his target in disciplinary isolation to convince the target that the

person building a friendship with him is not an informanthas proven to be an

extremely effective tool. However, the evidence that is obtained after a target is

placed in isolation based upon false or trumped-up rules violations certainly rises

to the level of outrageous governmental conduct. A rule violation that is

unsupported by a good faith factual determination violates Cal. Code Regs. tit.

15, 1080 1084, which regulates placement in disciplinary isolationand is

akin to making a false arrest to permit the collection of evidence. Statements

obtained in this context amount to outrageous governmental conduct, and may

potentially lead to their exclusion even if elicited prior to the filing of charges

putting in jeopardy the prosecutions of numerous local and federal

investigations, including Operation Black Flag and Operation Smokin Aces.

This practice has additional, serious implications if fabricated findings and

supporting evidence of rules violations have been placed in inmates permanent

files, affecting their incarceration status in local and federal facilities. These

practices further support the need to reevaluate all convictions in which the

prosecution obtained information from custodial informants for potential


14

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

habeas corpus relief. Based upon the findings in this case, any and all

defendants whose cases included testimony from custodial informants should be

permitted to reexamine the circumstances leading to their contact with the

informants;

9) Evidence discussed herein and in the Motion to Dismiss demonstrates that the

OCDA discourages accurate documentation of confidential informant efforts

within the agencys Confidential Informant (CI) files. The evidence indicates

that the OCDA has refused to take logical steps to ensure that all informant

efforts connected to a particular Deputy DA or police agency will be identifiable

by prosecutors who have discovery obligations related to their informants. This

is shown powerfully by the OCDA CI file for Inmate F., which is missing entries

for three capital defendants from whom Inmate F. elicited statements: Scott

Dekraai, Daniel Wozniak and Inmate M. There is yet a fourth defendant who

was charged with attempted murder, Inmate S., for whom there is also not an

entry. Neither Dekraai nor any defendant housed in the Orange County

jailsparticularly those defendants charged with very serious crimescan

have any reasonable confidence that they have been provided with all

statements shared with the prosecution by its network of custodial

informants. These concerns are further enhanced by the conduct of the Dekraai

prosecution teamled by the supervisor of the OCDAs homicide unit

demonstrating that this agency and its leadership believes it acceptable to work

with informants to collect information about privileged defense information,

including strategies;

10) Prosecutors necessarily rely upon the informant witnesss CI file to comply with

their Brady obligations, by identifying prosecution files that contain other

statements by the same informant. However, the complete indifference and lack

of meaningful oversight by the OCDAs leadership in maintaining a reliable file-

keeping systemallowing some prosecutors to hide entries and others to make


15

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

entries through negligenceassures that many defendants fail to receive Brady

discovery regarding informant efforts to which they are entitled. As such, every

past conviction in which an informant has been used, whether custodial or

otherwise, should be reviewed to determine whether the defendant was deprived

of evidence that would have had a bearing on the witnesss credibility. This

could potentially require the reexamination of hundreds to thousands of

cases;

11) Those who have access to evidence received via the custodial informant

program have repeatedly shown their belief that evidence collected from

informants that is helpful to the defense of charged or convicted defendants,

including evidence that defendants are innocent, can be withheld from those

defendants. This is demonstrated in People v. Inmate I. (concealment of

informant notes indicating that another individual admitted to one of the charged

murders); People v. Ricardo Lopez (the concealment of informant notes

discussing another individuals culpability in a murder for which Lopez is

serving a life sentence); People v. Luis V. (concealment of statements by two

inmates to an informant indicating that Luis V. did not commit the attempted

murder for which he was charged); and People v. Henry Cabrera (concealment

of statements received by an informant indicating that Henry Cabrera was

improperly serving a life sentence for membership in a gang of which he was not

a member.) Local prosecutorial agencies have decided that informants should be

available solely to further the prosecutions narrowly defined view of success: a

win for the prosecution. Considering the relatively tiny quantity of notes

obtained by Dekraai as compared to the universe of informant notes, the only

reasonable conclusion from this study is that that prosecution team members

have routinely concealed such evidence relevant to the accuracy of criminal

allegations;


16

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

12) Petersen, Mark Geller, and Rahul Gupta elected not to pursue special

circumstances murder allegations against Henry Cabrera for the murder of

Ruben Cabanas because the effort would have undermined the viability of

Cabreras current life sentence (arising out of a jurys incorrect finding about

gang membership), demonstrated years of concealment by numerous prosecutors

and members of law enforcement, undermined the credibility of SAPDs most

experienced gang officer and other officers who either furthered the cover up or

had knowledge of it and did nothing, revealed significant Brady violations

affecting numerous cases, and required re-examination of thousands of cases in

which the wrongdoers participated as prosecutors or investigators. This

evidence also further corroborates that the OCDA has failed to set up any

meaningful oversight system, which is necessary to ensure that prosecutors and

local police agencies adhere to legal principles and ethical rules;

13) The misconduct committed by Assistant DA Wagner, Deputy DA Simmons,

Deputy DA Erik Petersen, Deputy DA Mark Geller, Deputy DA Steven

Schriver, Deputy DA Rahul Gupta, DA Investigator Robert Erickson, SBPD

Detective Krogman, Special Handling Deputy Ben Garcia, Special Handling

Deputy Seth Tunstall, SAPD Detective David Rondou, SAPD Detective

Matthew McLeod, SAPD Detective Charles Flynn, and former SAPD Detective

Ronald Castillo, requires the re-examination of each and every case in which

they were either an assigned prosecutor or assigned investigator. This could

lead to the reexamination of thousands of cases;

14) There should be immediate habeas corpus review in the following cases

discussed and further identified herein: People v. Vega, People v. Ricardo Lopez,

People v. Camarillo, People v. Henry Cabrera I, People v. Henry Cabrera II,

People v. Brambila II, People v. Galarza, and People v. Gabriel C., as a result of

the misconduct and newly discovered information detailed in these motions;


17

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

15) Erik Petersen is the sole assigned prosecutor in each of the Operation Black

Flag and Smokin Aces cases. As of February 13, 2014, there were 56

remaining defendants and 10 defendants already convicted, associated with these

operations. Petersens stunning and sustained misconduct in his prosecution of

People v. Vega, People v. Camarillo, People v. Rodriguez, People v. Inmate I.,

his rampant deception, suborned perjury of Oscar Moriel with the knowledge of

Special Handling Deputy Seth Tunstall, and concealment of informant notes

calls into question the reliability of each of the identified Mexican Mafia

prosecutions;

16) Petersens misconduct, including his efforts to suborn perjury of Operation

Black Flag informant Oscar Moriel, has likely caused irreparable damage to

numerous pending federal Black Flag prosecutions that rely upon Moriels

testimony and undermine the reliability of informant evidence related to those

prosecutions. (It is also unlikely that Petersen shared with federal authorities

that Inmate F. committed perjury at his own trial, and as a result likely was not

introduced during his grand jury testimony in federal proceedings.);

17) Petersen has apparently hid from alleged Delhi gang members whom he has

prosecuted that he had a potential bias against them: he had purportedly been

threatened by Delhi gang member Leonel Vega after the prosecutor obtained a

special circumstances murder conviction marred by massive misconduct. The

decision to conceal this threat also implies a significant lack of oversight by

supervising attorneys, who seemingly would have required that this personal

motive be revealed to defendants charged with crimes related to alleged Delhi

activity;

18) An independent prosecutorial agency should examine whether Petersen should

be prosecuted for suborning perjury in People v. Vega, People v. Rodriguez and

People v. Camarillo. A prosecutorial agency should also examine whether


18

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Moriel (in Vega and Camarillo), Rondou (in Vega and Rodriguez) and McLeod

(in Rodriguez) should be prosecuted for committing perjury;

19) The misconduct detailed in these motions may have significant impact on

pending legislation opposed by the California District Attorneys Association,

and permit a jury instruction helpful to the defense regarding that misconduct.

On February 7, 2014, the California Assembly passed a proposed Penal Code

Section 1127j, which states the following:

(a) In any criminal trial or proceeding in which the court determines that the prosecuting attorney has failed to disclose specified materials and information required under current law, including Section 1054.1 and Brady v. Maryland (1963) 373 U.S. 83, the court shall instruct the jury that the intentional failure to disclose the materials and information occurred and that the jury may consider the failure to disclose any circumstantial evidence to support the presence of reasonable doubt. (California Assembly Bill No. 885, introduced Feb. 22, 2013 by Assembly Member Ammiano, and attached herein as Exhibit A10; Aleaziz, Bill Would Bolster Brady, Daily Journal (Feb. 3, 2014), attached herein as Exhibit A11.)

This legislation will now be subject to a vote by the California Senate. The

California District Attorneys Association is opposed to it. The CEO of that

organization, Mark Zahner, stated that, Youre talking about extremely rare

instances happening in speaking of Brady violations. (Exhibit A11.) The Motion

to Dismiss reaches a very different conclusion, with the supporting evidence

suggesting that Brady violations are common, often egregious, and relentlessly

hidden by prosecutors and their agents. Therefore, the OCDA has yet additional

incentives not to acknowledge the wrongdoing alleged in the Motion to Dismiss.

Proof of these allegations would severely damage the arguments of Zahner and the

prosecutors he represents throughout the state, and lend powerful support for the

passage of this legislation. The consequences do not end there. While systemic

Brady violations described in the Motion to Dismiss may be a critical factor in


19

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

whether the law is passed, Brady violations specific to Dekraai would support use of

a jury instruction modeled after the proposed Penal Code section 1127j. As has

been discussed at length, the misconduct by the Dekraai prosecution team

undermines any reasonable faith that the prosecution will provide evidence helpful

to the defense on issues of mitigation or aggravation. If the legislation passes,

Dekraai intends to request an identical jury instruction mandated by the bill, with

the exception of replacing the language, the jury may consider the failure to

disclose as circumstantial evidence to support the presence of reasonable doubt

with the jury may consider the failure to disclose as circumstantial evidence that

the prosecution has concealed evidence helpful to the defense that is related to

issues of mitigation and aggravation.

In essence, while the recusal of Wagner and Simmons is obviously required, another

attorney from the same office is situated in an equally conflicted situation. On that

prosecutors shoulders would be the burden of protecting their office, other agencies, and

their fellow employees from the consequences detailed above. The bases for the conflict

have tremendous implications for the future of the OCDA, its attorneys, local law

enforcement, the custodial informant program, and federal and state prosecutions.

There are implications for the acknowledgement of wrongdoing or adverse findings

detailed above. Any Deputy DA who would replace the current prosecutors who

determined that the Motion to Dismiss accurately stated the misconduct that has occurred,

would also recognize that admitting this could reasonably lead to the following

determinations by the public, the judiciary, county supervisors, and legislatures and other

prosecutorial agencies:

1) The leadership of the OCDA and the OCSD has, at a very minimum, disserved

the criminal justice system through willful indifference to systemic misconduct;

2) The entrenched culture of misconduct both in the OCDA, the OCSD, and the

SAPD requires outside investigation, grand jury proceedings, and oversight by

independent agencies to assure sustained changes in practices and culture;


20

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

3) The refusal to heed rules governing disclosure of evidence to defendants suggests

that neither Penal Code section 1054 nor Brady are satisfactorily protecting

defendants rights to a fair trial and due process in the Orange County criminal

justice system. If the allegations are true, members of local and state government

may decide that special legislation is required to ensure that the rights of defendants

in this county are adequately protected;

4) Although habeas corpus proceedings in California are unfunded, defendants

should receive habeas counsel in the cases implicated by this motion, with the costs

potentially absorbed by the OCDA if these violations resulted from systemic

policies or wide-scale negligence;

5) It is no longer clear that the OCDA will seek convictions, as well as the ultimate

punishment of death, in a manner that is fair and which ensures that verdicts will not

be subsequently undermined by revelations of hidden evidence and misconduct.

The repeated acts of misconduct detailed herein support that concern. Evidence of a

moral compass that has gone far off course is seen in the suppression of evidence

pertaining to custodial informants, as well as their choice and treatment of

informants. For instance, informants such as Inmate F. (who committed perjury at

his own trial) and Oscar Moriel (who committed perjury at the trials of others with

the help of the OCDA) have also been given extraordinary roles in the criminal

justice system and a pass for their extensive criminal history and extreme violence.

Oscar Moriel, for instance, is no longer facing a life sentence on his attempted

murder because of his cooperation. Yet, he has testified in cases to killing multiple

peoplein People v. Camarillo stating that he murdered up to five, maybe six

victims. As if his central role in determining the outcome of cases was not

sufficiently shocking, the OCDA and local law enforcement have sought to protect

his credibility by not investigating his murders. They have done this even though

Moriel apparently has been ready and willing to discuss them and could present

details that solve cold cases, free those wrongfully charged for the same crimes, and


21

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

brings closure to victims families;

6) The public, victims and their supporters, as well as defendants and their

supporters, can no longer reasonably trust the integrity of the OCDA and local law

enforcement to pursue investigations and prosecutions in good faith;

7) The OCDA has caused significant damage to its reputation by having instructed

on best practices for an informant program and then helping to create one that is

completely inconsistent with those practices. Assistant DA John Anderson and

Westminster Police Department Detective William Nye wrote the section on

informants for the U.S. Department of Justices Gang Prosecution Manual, which

detailed the importance of documenting direction and performance, as well as

adherence to Brady. The decision by the OCDA to instead create a program that is

dedicated to concealment and violating both Massiah and Brady would

appropriately devastate the reputation of the OCDA among local, state, and federal

prosecutorial agencies.

Additional evidence of the OCDAs inability to examine this case impartially

emerged in the last ten days. On February 7, 2014, Wagner requested from this Court a

three week sealing period for the Motion to Dismiss to purportedly analyze the motion for

possible redactions and additional sealing requests. His request was seemingly based upon

the need to work through a heavily detailed 500 page motion (and many thousands of

pages of exhibits), which he only had for one week at the time of the request. But after

obtaining a temporary order from this Court to seal the Motion to Dismiss, Wagner decided

to give strongly worded statements to the media about the allegations contained within the

Motion to Dismiss. The prosecutor chose to make this statement at a moment when he

knew, in light of this Courts sealing order, that the public and most media organizations

would be unable to access the motion to consider whether his response was accurate. But

even more surprising was what he said:

//

//


22

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

We think much of whats contained in it is untrue and unfounded, said Assistant District Attorney Dan Wagner. There are over-the-top, scurrilous allegations in there Unfortunately, these types of allegations are becoming sort of commonplace ... for defense attorneys its part of their normal litigation strategy.

(Arevalo, Dekraais Lawyer Alleges Prosecution Misconduct, Los Alamitos-Seal Beach Patch (Feb. 8, 2014), attached herein as Exhibit A12, emphasis added.)

After the Motion was unsealed on February 14, 2014, Wagner told the Orange

County Register that the motion is filled with untruths. (Hartley and Jolly, Seal Beach

slayings: Allegations of D.A., Sheriff misconduct, O.C. Register (Feb. 14, 2014), attached

herein as Exhibit A13.) Wagner unintentionally, but quite compellingly, corroborated that

his office is unable to impartially participate in this case: the OCDAs willingness and

ability to impartially assess the accuracy of the allegations is disproven when the

findings of a purported investigation are announced almost from the outset and well

before the investigation has been completed. Wagners comments also signal to each

and every attorney from his office who might replace him and Simmons what is expected:

ferocious advocacy showing that the defense has made scurrilous allegations and that

most of what is found within the Motion to Dismiss is untrue and unfounded.

This message was also advanced as recently as February 14, 2014, a group of

prosecutors converged on another courtroom to see an attorney from the homicide unit,

Senior Deputy DA Matthew Murphy, assail Sanders honesty in a hearing on a case with

related informant issues, People v. Wozniak. As discussed beginning at page 82, that

prosecutor suggested that he would magnanimously refrain from pursuing perjury charges

against Sandersknowing the claim of perjury was made in bad faith and was intended to

intimidate counsel for Dekraai and Wozniak, who had just two weeks earlier made serious

allegations in the Motion to Dismiss against his fellow prosecutors.

These efforts speak squarely to why Dekraai cannot receive a fair trial from the

OCDA. With the words of Wagner and Murphy, a veteran attorney whom he supervises,

ringing in the ears of fellow prosecutors, it is illogical to believe that any member of the


23

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

OCDA would proceed impartially with this case and turn over helpful evidence to Dekraai,

thereby showing that the prosecution team held back evidence relevant and helpful to the

defense in the penalty phase in this case. To do so would devastate the credibility of

Wagner, and offer evidence that he and his team members were deceitful. Additionally,

acknowledgement of wrongdoing would also bring significant ramifications personally and

professionally to the identified individuals, support the sanction requested in the Motion to

Dismiss, and damage the credibility of the OCDA as a prosecutorial agency.

ISSUES PRESENTED

I. WHETHER THE PROSECUTION'S MISCONDUCT HAS CREATED A CONFLICT OF INTEREST WHICH DISQUALIFIES THE ORANGE COUNTY DISTRICT ATTORNEY FROM PROSECUTING THIS CASE?

POINTS AND AUTHORITIES

Prior to the 1980 enactment of Penal Code section9 1424, a district attorney could be

disqualified when a judge determined the prosecution has a conflict of interest which might

prejudice the prosecution against the accused "and thereby affect, or appear to affect," the

prosecution's ability to impartially perform the discretionary functions of a prosecutor.

(People v. Superior Court (Greer) (1977) 19 Cal.3d 255, 269.)

Section 1424 was the Legislature's response to the Greer decision. (People v. Lopez

(1984) 155 Cal.App.3d 813, 824.) It requires recusal upon a showing "that a conflict of

interest exists that would render it unlikely that the defendant would receive a fair trial."

(Pen. Code, 1424, subd. (a).) The California Supreme Court discussed the effect section

1424 had on its holding in Greer in People v. Conner (1983) 34 Cal.3d 141. The court

recognized that section 1424 contained a different recusal standard than Greer, but

nonetheless held that the statute contemplates both "actual" and "apparent" conflicts. (Id.

at p. 147.) However, the distinction between an actual and apparent conflict is "less

crucial" under the statute because of section 1424's additional requirement that the conflict

9 All further section references are to the Penal Code unless otherwise noted.


24

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

"render it unlikely that defendant will receive a fair trial unless recusal is ordered." (Ibid.)

Section 1424 creates a two-part test to determine whether the prosecution should be

recused: (1) Whether a conflict exists; and (2) whether the conflict renders it unlikely the

accused will receive a fair trial. (Haraguchi v. Superior Court (2008) 43 Cal.4th 706, 713.)

The prosecution's misconduct in this case and in the prior cases involving the use of the

custodial informant program has created a conflict of interest, and that conflict renders it

unlikely Dekraai will receive a fair trial. Accordingly, the OCDA should be recused from

this case.

As noted, the first part of the test under section 1424 requires this Court to

determine whether the OCDA has a conflict of interest in prosecuting this case. A conflict

exists within the meaning of section 1424 "whenever the circumstances of a case evidence

a reasonable possibility that the DA's office may not exercise its discretionary function in

an evenhanded manner." (People v. Conner, supra, 34 Cal.3d at p. 148.) There is no need

to determine whether the conflict is actual or just apparent; both satisfy the conflict

requirement. (People v. Eubanks (1996) 14 Cal.4th 580, 591-592.) Further, whether a

district attorney has a conflict is not limited to situations where the prosecution has a

personal financial or emotional interest in the prosecution. (Id. at p. 595.) To the contrary,

the prosecution's impartiality can be impaired by institutional interests. (Ibid.) This first

part of the test asks only "whether a 'reasonable possibility' of less than impartial treatment

exists ...." (Haraguchi v. Superior Court, supra, 43 Cal.4th at p. 713.)

The second part of the test requires a determination whether the conflict renders it

unlikely the defendant will receive a fair trial. (Haraguchi v. Superior Court, supra, 43

Cal.4th at p. 713.) This question is answered affirmatively if "it is more likely than not the

defendant will be treated unfairly during some portion of the criminal proceedings." (Ibid.)

Although section 1424 focuses on whether the accused will receive a "fair trial," the need

for "prosecutorial impartiality extends to all portions of the proceedings, not only to the

trial." (People v. Eubanks, supra, 14 Cal.4th at p. 593.) The two parts of the test "are to

some extent continuous rather than discrete, as many factors relevant to the overarching


25

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

inquiry may be framed in terms of their effect on the existence of a conflict or its gravity."

(Haraguchi v. Superior Court, supra, 43 Cal.4th at p. 717, fn. 13.)

Section 1424 further provides that after all parties have briefed the issue, the trial

court "shall review the affidavits and determine whether or not an evidentiary hearing is

necessary." (Pen. Code, 1424, subd. (a)(1).) The Court of Appeal recently addressed the

basis on which a trial court should make this determination in Spaccia v. Superior Court

(2012) 209 Cal.App.4th 93. Prior to 1999, section 1424 did not provide for an evidentiary

hearing; instead it spoke only of "the hearing on the motion." (Id. at p. 109.) The 1999

amendment to the statute added the language contemplating an evidentiary hearing. (Ibid.)

The court found some guidance in the legislative history of the amendment, observing that

as originally introduced the bill prohibited an evidentiary hearing unless "there are disputed

issues of material fact that cannot be resolved through the use of affidavits. [Citation.]"

(Ibid.) Additionally, a committee report for the bill noted opponents of that limiting

language argued evidentiary hearings were valuable on the issue of disqualification and

thus should be more freely available. (Id. at p. 110.) By comparing the original language

of the bill to what was ultimately enacted, the court determined the following:

As the language limiting hearings was ultimately rejected in favor of language leaving the issue of whether to hold an evidentiary hearing to the trial court's discretion, we can infer that the Legislature expressly chose not to limit evidentiary hearings to only those situations in which there exist disputed issues of material fact which could not be resolved on affidavits alone.

(Spaccia v. Superior Court, supra, 209 Cal.App.4th at pp. 110-111, fn. omitted.)

The court thus held it is clear that trial courts have the discretion to determine, after

reviewing the affidavits submitted by the parties, whether an evidentiary hearing on a

section 1424 motion is necessary. (Spaccia v. Superior Court, supra, 209 Cal.App.4th at p.

111.) The court further held that an evidentiary hearing may be deemed "necessary" even

if the movant has not established the existence of disputed issues of material fact which

cannot be resolved solely through the use of the affidavits. (Ibid.) On review, a trial court

will have abused its discretion in denying an evidentiary hearing if the defendant makes a


26

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

prima facie showing for recusal. (Ibid.) "A 'prima facie' showing refers to those facts

which will sustain a favorable decision if the evidence submitted in support of the

allegations by the petitioner is credited. [Citation.]" (Ibid.) In so holding, the court

analogized the necessary showing in a recusal motion with the showing a parent must make

to obtain a hearing on the modification of a dependency order under Welfare and

Institutions Code section 388, and the showing an inmate seeking habeas relief must make

to obtain an order to show cause. (Ibid.)

In the instant case, Dekraai has certainly made a prima facie case that recusal is

required, and thus this Court should conduct an evidentiary hearing on the issue.

FACTS

OCDAs Understanding of Proper Administration of Confidential Informant

Program

The leadership of the OCDA is undoubtedly well-versed on the prohibition against

eliciting statements from charged and represented defendants under Massiah v. United

States (1964) 377 US 201, and appreciative of their legal and ethical obligations with

regard to discovery.

The OCDAs recognition of the vital importance of ensuring that an informant

program operating within the local jails (custodial informant program) honors these legal

principles and protects the interests of justice, both for the prosecution and the defense, is

documented. The former supervisor of the OCDAs Tri-Agency Resource/Gang

Enforcement Team (TARGET) Unit, Assistant DA John Anderson, and Westminster

Police Department Detective Mark Nye were given the significant honor and responsibility

of writing a chapter in the U.S. Department of Justices Gang Prosecution Manual, which

included a section that articulated the fundamental principles of an ethical and successful

informant program:

//

//


27

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Police and prosecutors should carefully log all benefits conferred on a CI during an investigation and disclose the benefits before trial to the defense. Such benefits are viewed legally as motivation for a CI to favor law enforcement while testifying. Great care must also be given to disclosing to the defense any exculpatory Brady material that might be discovered as a result of the CIs cooperation, Brady v. Maryland, 373 U.S. 83 (1963). [] CIs should only be used after a written agreement is signed that fully discloses the agreement between the CI and the police (in conjunction with the prosecution). Police should also maintain a log of all supervision of and direction given to a CI and document the performance of the CI, both good and bad. It is critical to present the CI in the most accurate light possible to avoid the appearance that the police and prosecution are hiding things.

(Exhibit F, p. 21.)

As will be shown, Orange Countys custodial informant program not only fails to

incorporate the policies of good government articulated above, but has put into place

practices to ensure that governmental agencies violate the law in secrecy and with

impunity.

Inmate F.s Interjection into People v. Dekraai

Soon after his arrest for the murder of eight people, Dekraai was moved from a tank

in the Orange County Jail (OCJ) where was housed into the same one where Inmate F.

was located. Dekraai was actually moved into the exact cell that Inmate F. had been

occupying only hours earlier. Just before Dekraais arrival in Mod L Tank 17, though,

Inmate F. moved into the adjoining cell. (Exhibit A8, pp. 73-75, 78-79.) Inmate F.

befriended Dekraai and ultimately asked him about the crime. (Exhibit A8, p. 93-95.)

Their conversations were memorialized in detailed notes by Inmate F. that were turned

over to Special Handling Deputy Ben Garcia. (Exhibit A8, pp. 84-85, 87-88.) Prosecutors

and members of law enforcement conducted a recorded interview of Inmate F. and shortly

thereafter placed a recording device in Dekraais cell. (Exhibit A8, pp. 89-98.) The device

captured Dekraais discussions of the crime, his mental state, his meetings with his former

counsel, as well as his conversations with jail mental health staff. The device also recorded

Inmate F.s persistent efforts to build what Dekraai perceived was a growing friendship


28

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

between the two men. (Exhibit A8, pp. 98-105.)

In the prosecution teams single recorded interview of Inmate F., which took place

prior to the introduction of the recording device into Dekraais jail cell, Inmate F.

explained how he found himself speaking to Dekraai. Inmate F. said that he asked Dekraai

why the crime occurred, and then assured him that he really wanted to know what

happened. Dekraai purportedly responded by opening up about his life and the incident.

After listening to Dekraai, Inmate F. said that his conscience propelled him to contact law

enforcement because he believed Dekraai needed to receive the death penalty for his

actions and what he expressed about the crime. (Exhibit A8, pp. 91-97.) Neither the

recorded interview nor the subsequent reports indicated that Inmate F. was a custodial

informant, nor did they explain how Inmate F. and Dekraai came to be housed in adjoining

cells. (Exhibit A8, pp. 89-98, 113-114.)

It appeared that the prosecution had been the recipient of extraordinarily good

luck. The inmate housed closest to Dekraai was a good listener, a great note taker, and

someone so selfless that he wanted to assist the OCDA and local law enforcement without

wishing for anything in return. OCDA Investigator Ericksons subsequently written report

confirmed this picture of Inmate F. (Exhibit A8, p. 114.) The prosecution promised

nothing in return for his assistance, which was perfect for Inmate F. because he wanted

nothing. (Exhibit A8, pp. 90-92.)

Although Inmate F. told the prosecution team he wanted Dekraai to get the death

penalty, the recorded conversations presented a vastly different picture of his feelings

toward Dekraai. Inmate F. appeared to express genuine affection for Dekraai, calling him

brother, offering him food and even guidance to make his life in custody easier. He

inquired about Dekraais well-being and his meetings with counsel. (Exhibit A8, pp. 98-

105.) Per Inmate F.s notes, when he observed Dekraai appearing despondent with his

head in his hands, he asked, Whats up? Dekraai began speaking about his life and the

crime again. (Exhibit A8, pp. 105-106.)

The prosecution did not disclose any evidence related to Inmate F.s contact with


29

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Dekraai until three months after the recording device was removed from Dekraais cell.

During that window in time, Dekraais private counsel asked to be relieved and was

replaced by two attorneys from the Orange County Public Defenders Office. (Exhibit A8,

p. 3.) By happenstance, Sanders was serving as counsel for another defendant, Daniel

Wozniak, a special circumstances murder case in which Inmate F. had also elicited

statements. (Exhibit A8, pp. 26-30.) An entry within court minutes also showed that

Inmate F. had been transported to testify in a federal case. (Exhibit A8, p. 116.) It was

becoming increasingly clear that the prosecution had been far from transparent in its

presentation of Inmate F. However, when defense counsel requested more information

about Inmate F.s criminal and informant background, the prosecution refused. (Exhibit

A8, p. 2-4.)

Nonetheless, all was still proceeding smoothly for the Dekraai prosecution team

until January 25, 2013. That was the date scheduled for the hearing on Dekraais Motion

to Compel Discovery. Wagner argued, in writing and orally, against disclosure of any

information related to Inmate F. In his responsive brief and declaration, Wagner attempted

to convince the Court not to order discovery. He conceded and agreed to stipulate that the

first prong of a Massiah violation had been met during the time the recording device was

placed in the cell. (Exhibit A8, pp. 115-125.) Wagner declared that Inmate F. was (1)

acting as a government agent, i.e., under the direction of the government pursuant to a

preexisting arrangement, with the expectation of some resulting benefit or advantage

(Exhibit D, pp. 6-7, (citing In re Neely (1996) 6 Cal. 4th 901, 915).) However, elsewhere

in the same Opposition and in his attached declaration filed under penalty of perjury,

Wagner stated that Inmate F. never expected nor wanted a benefit for his assistance. He

wrote, The prosecution team told Inmate F. that it would not be giving Inmate F. any

consideration or leniency for his efforts. Inmate F. said that he was not looking for any

consideration, but that due to the seriousness of the case, he believed the prosecution

should hear what defendant had told him. (Exhibit D, pp. 2, 16.)

Wagner made another statement in his declaration that seemed equally suspicious


30

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

though the deception surrounding it would not become clear until September of 2013. He

wrote the following: OCDA does not anticipate nor intend to make any request or

recommendation for leniency at sentencing as a result of Inmate F.s involvement in the

present case and that the prosecution would give a fact-based appraisal of the value to

the case, but only [i]f summoned. (Exhibit D, pp. 3, 17.) As will be discussed, neither

the Court nor the defense could have known that Wagner and his team were hiding a

memorandum to Petersenconcealed for nearly two yearsthat called into question

the veracity of Wagners declaration and exposed just how far the prosecution would

go to defeat the discovery motion and obtain a death verdict. (Exhibit A8, pp. 107-

111.)

Despite the prosecution's efforts to keep the defense from learning more about

Inmate F., this Court ordered compliance with the informal discovery request made many

months earlier. The provided discovery related to Inmate F. consists of approximately

5,000 pages and 1,000 hours of recordings. (Exhibit A8, p. 4.)

Defendants understanding of the misconduct committed by the Dekraai prosecution

team detailed in this motion and the Motion to Dismiss first emerged from a study of

Inmate F.s notes found in OCSDs Confidential Informant (CI) files. However, notes

written by a second informant named Oscar Moriel, provided perhaps the greatest insights

about a discovery shell game used to hide the secrets of a custodial informant program.

(Exhibit A8, pp. 146-270.)

As will be shown, the OCDA, the OCSD, and local law enforcement have exploited

the lack of transparency inherent in an investigative program run within the jails. This has

allowed prosecution teams (the OCDA and law enforcement agencies that provide

investigative support) to gather evidence, hide the circumstances surrounding the

contact between informants and targets, and introduce incriminating statements

regardless of the legality of how the statements were received.

Inmate F.s Rise to Informant Status and Motivations for His Assistance

The Court-ordered discovery has helped illuminate what prompted the prosecutions


31

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

aggressive efforts to conceal Inmate F.s background. The responsive items included

reports memorializing Inmate F.s informant history, his criminal background, as well as

prosecution discovery in nine Orange County cases in which Inmate F. was referenced.

(Exhibit A8, pp. 7-34.)

The discovery revealed that Inmate F.s informant history appears to have begun

disastrously 14 years ago, when he sought consideration on his first felony case. An

Anaheim Police Department detective submitted an entry in the OCDAs CI file for Inmate

F., which states the following: [Inmate F.] WAS TERMINATED AS A C.I. DO NOT

USE AS A C.I. (Exhibit H, p. 5760.) As will be seen from an examination of his

criminal background, Inmate F.s response to nearly all of his arrests was to proclaim his

innocence and shift the blame to the true wrongdoer. Therefore, it is not surprising that

despite his initial failure at informant work, he was drawn to return to a job that values

deception. In 2001, he asked if he could receive consideration on another felony case by

providing information about other crimes. The Garden Grove Police Department either

missed or ignored the warning from the Anaheim detective and agreed. (Exhibit A8, p. 9.)

In 2009 and 2010, Inmate F. found a new and even more compelling set of reasons

to re-dedicate himself to informant work. In 2009, he was convicted in one of his two

Third Strike cases prosecuted by Petersen. (Inmate F. was also charged in 2006 with a

second Third Strike case. To date, he has not been sentenced on either of his cases.)

During the trial, Inmate F. committed perjury by testifying that he had left behind his gang

and the gang life several years earlier. (Exhibit A8, pp. 9-12.) In fact, he not only had

remained in his street gang, but had risen to a leadership position within the Mexican

Mafia. (Exhibit A8, p. 18.) At trial, Petersen did not mention Inmate F.s involvement in

the Mexican Mafia, likely because Inmate F. was then a key target in an ongoing Federal

RICO investigation related to his Mexican Mafia activities. (Exhibit A8, pp. 17-24.)

Nonetheless, Petersen attacked Inmate F. for his dishonesty during closing argument.

(Exhibit A8, pp. 9-12.)

After his conviction, Petersen wrote a sentencing brief asking that Inmate F. receive


32

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

a life sentence. (Exhibit A8, p. 12.) Because Petersen did not mention his Mexican Mafia

involvement, Inmate F. believed the government was unaware of the crimes he was

committing in the jail, including conspiracies to kill fellow inmates. As a result, Inmate F.

unabashedly pleaded with the court to reject Petersens sentencing request, asking that the

court and the probation department recognize him as a changed person who deserved a

second chance. (Exhibit A8, pp. 12-17.)

For Inmate F., though, his future as an inmate was growing more bleak. There were

increasing signs in 2010 that his ruling mesa was being challenged and his opponents

were gaining ground. (Exhibit A8, pp. 24-25.) Yet, in an ironic twist, Inmate F.s crimes

and his deceitfulness saved him from life in prison while a target of the Mexican Mafia.

Inmate F.s access to one of the organizations ruling factions within the jail made him a

prized commodity for investigators working on Operation Black Flag and the prosecutor on

the related cases, Petersen. The prosecution team also realized that Inmate F.s own

predicaments would motivate him to supply a prolific quantity of information. (Exhibit

A8, pp. 30-31.) Therefore, Petersen and his team decided to give Inmate F. a

transformative makeover: deceptive and violent inmate to truth-telling and socially

responsible informant.

Fully energized, Inmate F. went to work. Special Handling deputies have

acknowledged having numerous meetings with Inmate F. in the year that followed.

(Exhibit A8, pp. 30-32.) However, the Court-ordered discovery included less than a

handful of law enforcement reports. (Exhibit A8, p. 34.) Nonetheless, Inmate F.s efforts

and the secret operations of the custodial informant program have been gradually revealed

through a study of selected passages from the 133 pages of Inmate F.s handwritten notes

included in the OCSDs CI file. Inmate F. elicited dozens of statements related to Mexican

Mafia activities. (Exhibit A8, p. 30-34.) However, his work extended beyond that subject

matter. Discovery obtained pursuant to the Court order shows that Inmate F. obtained

statements from at least three different charged defendants, in addition to Dekraai, which

related to murder or attempted murder allegations. (Exhibit A8, pp. 26-30, 55-59, 128-


33

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

132.)

The Hidden Informant Assistance Memorandum

As discussed previously, Wagner wrote in his declaration in support of the

prosecutions Opposition to the discovery motion that the OCDA does not anticipate

nor intend to make any request or recommendation for leniency at sentencing as a result of

Inmate F.s involvement in the present case and that the prosecution would give a fact-

based appraisal of the value of the case, but only [i]f summoned.

However, in November 2011, just one month after interviewing Inmate F., OCDA

Investigator Erickson sent a memorandum to Petersen expressing the OCDAs actual plans

for Inmate F.s cases. The memo was certainly either penned by Wagner or sent at his

direction. For reasons Wagner will have to explain, it was withheld from the defense until

September 26, 2013. (Exhibit A8, pp. 107-109.) In contrast to what Wagner stated in his

declaration, the memo was intended to ensure that Inmate F. would receive consideration

for his valuable efforts. Erickson wrote:

In summary, Inmate F. provided facts and intelligence about the events of the day of October 12, 2011, that only Dekraai could have known. Those facts and intelligence will likely greatly enhance the prosecution of Dekraai, especially in the event there is an insanity plea entered by Dekraai. Following Inmate F.s interview, a covert investigation conducted with the jail facility further established the validity of the information provided by Inmate F. Inmate F. may eventually be called as a witness in the case against Scott Dekraai. [] As the prosecutor handling Inmate F.s case, this memorandum is being directed to you for your consideration and information only. I respectfully request that you keep Inmate F.s name in [sic] information, as it relates to the Dekraai case, confidential. Nothing about Inmate F. or his statements regarding the Dekraai case have been discovered to the defense.

(Exhibit J, emphasis added.) The concealment of this memo was a stunning Brady violation by a leader within

the OCDA. The memo was directly inconsistent with Wagners representations in his

declaration and the Opposition to the Motion to Compel Discovery. If Wagner was lying

to the Court when he wrote that the OCDA does not anticipate nor intend to make any


34

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

request or recommendation for leniency based upon Inmate F.s assistance in Dekraai, the

legal and ethical implications are obvious. Assuming arguendo he was not lying, the

ethical implications are equally serious and provoke numerous questions. For example, did

Wagner tell Petersen to disregard the November memo and to instead withhold

"consideration"? Did he give this command even though he believed "consideration" was

deserved based upon Inmate F.s valuable assistance? Did he tell Petersen why he no

longer wanted Inmate F. to have "consideration" for his work on Dekraai?

The most obvious reason that Wagner would have withheld benefits is a terribly

troubling and unethical one: he and others had already conspired in their interview of

Inmate F. to hide his informant status. (Exhibit A8, pp. 90-93.) The team believed that

their false presentation of Inmate F. was enhanced by suggesting he would receive nothing

in return. (Exhibit A8, pp. 90-93.) Erickson reiterated that point in his report. (Exhibit

A8, pp. 107-109.) Wagner wanted to be consistent on this issue in his representations to

the Court. (Exhibit A8, pp. 117-120.) Wagner could tell the truthInmate F. would not

be receiving a benefit from the OCDA for his assistance in Dekraaias long as he

instructed Petersen to no longer follow the request that Inmate F. be given consideration in

the November 2011 memo.

Petersen has as many questions to answer about the memo as Wagner. For example,

was Petersen told at some point after receiving the memo to give Inmate F. consideration

for his work on People v. Dekraai, but not to acknowledge the connection to this case in

any discussions with the court? What was his response to whatever direction came from

Wagner or another member of the Dekraai prosecution team?

The memo is also significant because it corroborates that shortly after their

interview of Inmate F., the prosecution team began taking steps to hide his informant work

in the instant matter. Toward that end, the memo instructed Petersen not to disclose to

anyone Inmate F.s assistance in eliciting statements from Dekraainoting that the

prosecution had not given Dekraai the evidence obtained with the assistance of Inmate F.

(Exhibit A8, pp. 107-109.)


35

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Wagner knew that Inmate F. was working as an informant in other cases prosecuted

by Petersen, and that Inmate F.s effor

Documents

People v. Dekraai - Recusal Motion