OCDA Says You Have the Right to Self-Incrimination

[Moxley Confidential] Defense attorneys claim OC prosecutors unfairly interrogate suspects

OCDA Says You Have the Right to Self-Incrimination
Bob Aul

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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24 comments
capmotion
capmotion

"'This is a motion [by Sanders] that cries out for a hearing,' Goethals stated."

Many matters in criminal courts cry out for a hearing, but what is too often lacking are judges with insight and hormones to side with liberty over power, which was intended by the Framers but which rarely occurs.  Judges are way, way too interested in earning "endorsed by law enforcement" on their election campaign materials, so the requisite neutrality falls by the wayside in the majority of these fracases.

tongue_twister_for_t
tongue_twister_for_t topcommenter

"I have absolutely no influence over the proceedings and procedures over the trials that go on in these courtrooms". - Judge Derek Johnson.

Overheard him say this in public area to court clerk.

tongue_twister_for_t
tongue_twister_for_t topcommenter

"80 percent of ALL cops are criminals and violate the laws while they are ON DUTY".

tongue_twister_for_t
tongue_twister_for_t topcommenter

"The citizens have a right to defend themselves from the police":. - OCDA T. Rackaukas.

NoBullshit
NoBullshit

The only thing to learn from this is to not trust anybody once you are in the cell.  And be very wary of any public defender you have because they are very friendly with the DA's office.  They have to be;  they work next to each other day in and day out.

949girl
949girl topcommenter

I'm kind of on the fence about this issue because if you invoke your right to an attorney and then you are dumb enough to confess or give incriminating details to a jailhouse informant and the snitch testifies that is one thing.  I do feel it is entrapment but I also feel that you should have the common sense to keep your mouth shut.   But to be putting audio in to a cell is totally different.  Don't you have to give consent to be recorded? I think recording someone after they specifically said they wanted an attorney is wrong.  

 

18usc241
18usc241 topcommenter

"Matt Murphy, Wagner's DA colleague who is handling the Wozniak case, also took issue with Sanders' complaints that the OCDA used the informant known as "Inmate F"—a despicable Mexican Mafia, career criminal—to trick that defendant into talking."


When I read this Mr. Moxley, I wonder whether the white crack addict trash sent to harass me were current or former members of neo-Nazi gang groups in Orange County, CA.  I wonder if the latino trash sent to harass me were current or former gang members (maybe even Mexican mafia trash). And finally, I wonder if some in Orange County, CA law enforcement are moonlighting as cocaine traffickers since the criminal harassment by this police community began around the time that I was working for STSS Inc on law enforcement related engineering projects in Bogota, Colombia (with the cooperation of Colombian law enforcement). 


This US born latino man is left to ponder this because the FBI, Tony Rackauckas, Loretta Sanchez and the cities of Garden Grove and Anaheim are too criminal or too cowardly or both to help. 

18usc241
18usc241 topcommenter

Any American prosecutor or District attorney who fosters "a culture that confuses winning with justice" is an American traitor and criminal sociopath. This sort of person belongs in federal prison along side Mike Carona - permanently. Quite literally, a danger to the fabric of American society.  


I have personally seen what a society looks like when it's collapsed as a result of the criminal filth of it's politicians / police / military. It's nasty stuff. 

18usc241
18usc241 topcommenter

"prosecutors strenuously fought to keep secret but ultimately surrendered after a judge ordered their release"


So much obstruction from this sea of integrity called the Orange County, CA District Attorney's office. If you have nothing to hide you have nothing to worry about correct? Isn't that the bullshit you tell the American people? 

18usc241
18usc241 topcommenter

Since a collection of criminal sociopaths (cops / FBI / prosecutors? who knows ... you name it) in the Orange County, CA criminal justice system use criminal civilian confidential informants to harass. intimidate. damage property. invade home privacy. and attempt murder I assume that any testimony from an "in-custody informant" is backed up by audio / video tape evidence. If not, the prosecution/conviction has a high probability of being complete mierda.  

fc2479
fc2479

Hope Manny gets his job back with the Fullerton police....we are pulling for you buddy...good job in court....just saying scott....

Jeff Brusius Mahaffey
Jeff Brusius Mahaffey

Whether concerning civil or criminal matters, a strict adherence to the Constitution, the rules of evidence, legal ethical standards, as well as transparency & accountability in public funding, is crucial to maintaining a viable government & judicial system. This holds true regardless of one's political leanings.

Useyourbrain
Useyourbrain

@NoBullshit  

Or, here's a novel idea:  Stay out of trouble and chances are you won't get arrested; and this matter becomes a non-issue.

capmotion
capmotion

@949girl People need to learn to shut up, whether in jail, on the street, or being addressed by government.  You are never safe to talk about the facts of your matter, whether to cops, friends, cellmates, loved ones, or anyone except your attorney.  95% of the cases that are conviction bound are such because the suspect could not shut the hell up, or could not say "no" when asked for consent to search.  Government is not your friend - it is only its own friend, with its own agenda, and justice toward individuals or their families and friends is not part of that agenda.

rscottmoxley
rscottmoxley topcommenter

@949girl Good question. Given that even pretrial inmates have no right to privacy, the audio or visual cell bugging isn't controversial. Law enforcement does it all the time. But there is--or should be--a distinction between that conduct and the government using its powers over in-custody defendants to trick them into answering prosecutor questions after they've invoked their constitutional right not to talk. Either that right has meaning or it doesn't, no?

rscottmoxley
rscottmoxley topcommenter

@fc2479  Isn't he already working as Jimmy Kimmel's sidekick?

FishWithoutBicycle
FishWithoutBicycle

@Useyourbrain  

I suppose you are one of those individuals who believes that if someone is in jail they "deserve" to be there because they "must have done SOMETHING wrong" or else they wouldn't be incarcerated...even if they didn't commit the particular crime they were being locked up for! If you seriously believe everyone in jail is guilty and deserves to be there you are woefully delusional.

949girl
949girl topcommenter

@rscottmoxley @949girl I guess that is where I get a little confused.  I'm not sure what law it is or if it is even a law but I was always under the impression that video/audio recordings were not admissible in court if the person being recorded didn't give consent.  I guess that isn't the case from what you are saying?  So anyone who is arrested in jail can be recorded at anytime and it is allowable to be heard in court as evidence?

It seems like there is some loophole that was made around the 6th amendment to work in favor of the state when an inmate decides to invoke their right to a defense attorney.  I know informants/snitches aren't very credible.  They seem to testify in a lot of cases so I'm sure a lot of people on the jury know they have something to gain by testifying and that their testimony isn't always considered very truthful.  There is kind of a golden rule in jail that you aren't to be a rat.  So does that mean when an informant goes in with a specific intent of getting information for the DA it's ok?  It's almost as if the inmate is employed by the DA, he may not be getting paid but he definitely has a clear motive.  I don't think that is alright.  If the state has a solid case then they should be able to prove it without trickery.

Now I can understand if "John Smith" has a big mouth or is dumb and gives up info to a regular inmate and that regular inmate sees that admission as bargaining power for their own sentencing or conviction for testifying against the inmate awaiting trial.  The regular inmate who uses this inmate to work in their advantage seems more legitimate but even still I would know he had a motive.  But at least it's not the DA being shady.


I know someone who was in a high profile case in OC a couple of years back and that person knew that they were purposefully being put in the same cell or holding area with their codefendant because the DA had had informants going after them from the very beginning.  He was there for a long time and said the jail was full of informants and that it is wise to not speak about your case at all.



 


fc2479
fc2479

No buddy, that's Guillermo Rodriguez.  Think that's kinda racist that you would bring that up with that tone.  You might want to get with Gustavo before you start making racist comments.....you know he wrote the whole guacamole article.  Peace...glad Manny beat the case....ha ahha ha

FishWithoutBicycle
FishWithoutBicycle

@Useyourbrain  

You are right, an innocent person would probably maintain their innocence throughout, even if an informant tries to coax a confession out of them...as opposed to admitting guilt when being aggressively interrogated. The latter is why I get annoyed when folks say things like "just keep your nose clean and you won't go to jail". The fact is there are SO many people in jail who shouldn't be there that there is a national foundation called The Innocence Project to help those wrongly incarcerated.

Useyourbrain
Useyourbrain

@FishWithoutBicycle @Useyourbrain  


My statement was qualified by the phrase "...chances are..."  There are always exceptions; I don't think they are the norm, however.  If you can demonstrate anywhere in my statements that I implied that innocent people are "never, ever" arrested, please show me.


I thank you both, however, for the Straw Man.


And by the way, another thought:   Someone innocent behind bars would not, *in all likelihood*,  be copping to a crime they didn't commit to--- an informant---- or anyone else.

 
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