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Liars' Poker Between OCDA and Public Defender

[Moxley Confidential] OC Judge Terri Flynn-Peister denies prosecutor, deputy claims she ordered informant program cheating

Liars' Poker Between OCDA and Public Defender
Bob Aul

Accompanied by a solemn U.S. Department of Justice (DOJ) official to insure she didn't reveal secrets of WITSEC, the federal witness protection program, Superior Court Judge Terri Flynn-Peister entered a hushed, crowded courtroom on June 26 and took the witness stand. As a courtesy to a colleague, presiding Orange County Judge Thomas M. Goethals waived the requirement to place Flynn-Peister under oath. But not everybody was polite after the witness left the unmistakable impression certain members of the district attorney's office (OCDA) and sheriff's department (OCSD) are liars covering up corruption.

In other words, the OCDA/OCSD's scenario that a dictatorial federal prosecutor controlled their discovery moves was hogwash, according to Flynn-Peister.

Before her 2012 bench appointment, Flynn-Peister served as an Assistant United States Attorney. One of her final cases was Operation Black Flag, a joint federal-state probe targeting the Mexican mafia and its Southern California associates with jailhouse snitches. Scott Sanders, a public defender, learned those informants worked against his client, Seal Beach salon killer Scott Dekraai, and wanted the judge's testimony to settle a corruption dispute.

But there was a problem. There's an unofficial pecking order in our courthouses, and public defenders are often treated like one-eyed stepsisters. To put Flynn-Peister on the stand, Sanders needed permission from Goethals as well as DOJ, plus he had to agree he'd limit the inquiry to Orange County Jail (OCJ) informants without pursuing WITSEC mysteries.

Bob Aul

Details

In February, Sanders filed a courthouse-rattling, 505-page motion that accused prosecutors of cheating. He uncovered evidence law enforcement trampled defendants' constitutional rights by employing jailhouse snitches to obtain incriminating statements from pretrial inmates who had lawyers. He also learned OCDA repeatedly failed to share exculpatory evidence with defense lawyers in multiple cases. Said the public defender, "There are things they don't want anyone to see."

Prosecutors initially balked, calling Sanders' assertions "conspiracy theories" unworthy of hearings. But Goethals, a former defense attorney and high-ranking prosecutor, disagreed. Resulting disclosures have been one-sided in the public defender's favor, including that OCDA improperly withheld more than a thousand pages and nearly 400 hours of recordings. Sanders' work also forced prosecutors to admit they botched the case against Leonel Vega, a screw-up that means a defendant sent away for life based on questionable informant work gets a new trial.

Goethals' hearings transformed Sanders into a prosecutor. Deputy DAs placed under oath to explain the messes, however, became slippery witnesses disabled by severe memory loss. They also seethed about the role reversal. Yet revelations impacted OCDA, where officials continually revamp talking points.

First, prosecutors denied problems. Then they blamed oversight. Then they blamed police for making wrong discovery decisions on their behalf. Next, they said they didn't fully understand the duty to share exculpatory evidence. Then they blamed a lousy record-keeping system and, in true bureaucratic fashion, declared the solution is to increase OCDA's budget by $630,000.

But Sanders' use of the government's own half-assed records and his relentless questioning left prosecution teams in a quandary that forced them to lob a Hail Mary pass. They admitted records had been hidden from defense lawyers, but—as with all the prior explanations—they didn't accept responsibility. The blame, according to the latest version, belonged solely to Flynn-Peister.

Erik Petersen, a deputy DA already rebuked for ethical lapses, testified he accidentally violated discovery rules because Flynn-Peister, his Operation Black Flag counterpart, "deliberately withheld" records from him. Homicide unit chief Dan Wagner said federal agents might arrest him if he gave Sanders discovery. In May, OCSD's Seth Tunstall testified he couldn't recall who ordered records withheld, but as Sanders' pursuit of the DA's office intensified, the deputy's memory dramatically improved. At a late June hearing, he'd become positive Flynn-Peister wanted the records hidden, though he was still fuzzy about specifics.

With Flynn-Peister on the witness stand, Goethals asked if she told anyone in OCDA or OCSD to hide evidence or strategized to violate defendants' rights.

"No," she replied.

Goethals followed up: Could your memory be wrong?

"No."

Did you ever refuse Petersen a request for records?

"No. . . . I was never involved in any details about what was given over [to defense lawyers in state cases]."

In fact, Flynn-Peister said, she advised the operation's case agents to notify her if an informant solicited incriminating statements for OCDA from pretrial defendants. She didn't want snitches used to violate constitutional protections. She also assured Goethals that nobody—including Petersen or Tunstall—ever got her permission to bury evidence.

In other words, the OCDA/OCSD's scenario that a dictatorial federal prosecutor controlled their discovery moves was hogwash, according to Flynn-Peister. She stated Petersen had access to all Operation Black Flag records, except ones pertaining to sensitive WITSEC and wiretapping issues. Sanders pounced, asking the judge if she restricted Petersen's cases in any way. "I could not interfere and stop disclosure [of evidence] if it was relevant to a state prosecution," said Flynn-Peister, who described her attitude as "so be it" about defense lawyers obtaining records on the informants—habitual liars Oscar Moriel and Fernando Perez—because they were entitled to the information.

During early stages of Goethals' hearings, Keith Bogardus and Stephan Sauer served as OCDA's brainy sparring partners with Sanders, but DA Tony Rackauckas replaced them with a combative Howard Gundy, who had been booted from the homicide unit. Gundy possesses an agile intellect that doesn't square with his hamfisted insistence that Sanders is the villain. He concedes OCDA has been "sloppy," but, he says, the errors weren't intentional. Echoing a mentality espoused at the upper ranks of his office, his theme has been simple: Deny, deny, deny.

To Sanders, the strategy is "malarkey" because the failures are in "case after case."

If Rackauckas and his crew had taken a deep breath and opened their minds to see obvious problems instead of circling the wagons from the outset, they could have done the right thing early on: apologize and make reforms. After all, such a reaction wouldn't be a gift to the public. Their oaths of office require allegiance to an aboveboard criminal-justice system.

But—as an indication of OCDA's warped groupthink—Gundy didn't process Flynn-Peister's testimony as another signal for surrender. While the likes of Kate Corrigan, president of the local criminal-defense bar, praise the judge's "honest, ethical" DOJ service, Gundy challenged Flynn-Peister's memory, professionalism and veracity. He even tried to shift OCDA's obligations to her.

Flynn-Peister calmly replied, "I was not involved in the cases Mr. Petersen had, so I don't know what [discovery] obligations were triggered there. In my federal cases, I was going to turn over at the appropriate time everything that needed to be. It was my understanding the state was doing the same on theirs."

Gundy—who pounded his fist and yelled during hearings—didn't like that answer. In response, he made a needless error, claiming OCDA couldn't be guilty of wrongdoing because it didn't have the means to cheat. Petersen, he insisted, played a minor, subservient role in Operation Black Flag. Gundy must not know a 2011 DA press release hailed his agency as a prosecution partner with DOJ, which is exactly what Flynn-Peister described.

In early August—after a July 25 oral argument showdown, Goethals will announce if the government cheated Dekraai and, if so, what sanctions he'll impose. Prosecutors crave a painless ending. Sanders wants a ruling that deters similar, future scandals because he's convinced OCDA and police have been engaged "in pretty serious shenanigans."

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