DA Used Perjury Scam To Intimidate Defense Witness In Troubled Murder Case
On-the-ball defense attorney Rudy Loewenstein spotted underhanded OCDA murder cases tactics
John Gilhooley / OC Weekly
What happens if you're an innocent bystander to a murder, but the Orange County district attorney's office (OCDA) doesn't like your account of events because it contradicts the version of the crime prosecutors want to sell a jury?
We don't have to guess.
Jonathan Alvarado knows the answer, and it's not pretty—at least if you believe law enforcement's job is to pursue justice, not operate corruptly.
Playing video games inside his Santa Ana home at 7:29 p.m. on Oct. 23, 2006, then-15-year-old Alvarado heard more than a dozen gunshots and looked out a living-room window, according to court records. Down the street, an unarmed, fiftysomething-year-old Emeterio Adame lay dead. From a distance of 40 feet, Alvarado watched one of the gunmen run to the passenger side of an idling, black Toyota Camry and jump in before the driver, whose head was visible, sped away. The physical descriptions Alvarado gave police fit Sergio Cabezas and Victor Lagunas, two chubby, bald Latinos who were members of The Public Vandals (TPV) street gang and would eventually be tied to the crime.
Critically, Alvarado didn't see a third, relatively tiny perpetrator with a full head of hair near or inside the getaway car. That fact eventually proved problematic for Deputy District Attorney Erik Petersen. He desperately wanted to convict Eric Ortiz, 17, as the triggerman and, as I've explored in prior reports, took questionable moves in hopes of accomplishing his mission. (See, for example, "Prosecutor Erik Petersen Magically Finds Jailhouse Snitches to Save Troubled Cases," Oct. 14, 2015.)
Cramming rectangular wishes into oval reality hasn't worked, despite a decade of trying to put Ortiz in prison for the rest of his life. Petersen won a January 2014 conviction just three days before his reputation as a rising superstar in OCDA began imploding with the emergence of what has become known nationally as the OC Jailhouse Snitch Scandal. But the deputy DA's victory proved fleeting amid revelations that prosecution teams have secretly trampled the constitutional rights of pretrial defendants for years.
With Ortiz awaiting sentencing last October, Tustin-based defense attorney Rudy Loewenstein demanded a hearing to explore government corruption tied to the case. Four Orange County Sheriff's Department (OCSD) deputies historically refused to testify under oath about their on-duty actions for fear of being charged with crimes. In November, Superior Court Judge Richard King lost confidence in the conviction and overturned it. A second trial earlier this month resulted in a 10-2 vote for not guilty.
Not surprisingly, OCDA—which maintains all snitch-scandal misdeeds only coincidentally aided prosecutors 100 percent of the time in dozens of cases—refuses to give up. Agency spokeswoman Susan Kang Schroeder declared after the embarrassing loss that Ortiz will be tried a third time, saying, "Sometimes it takes more than one trial to bring justice."
For anyone still confused about the scandal's relevance, this case illustrates the enormous power of unethical badged individuals to manipulate the criminal-justice system, trick jurors and win tainted convictions—all while appearing noble public servants.
•In 2011, five years after the murder, three Santa Ana Police Department officers—including David Rondou, a close Petersen friend—claimed they were transporting Misael Santos to Juvenile Hall when the 15-year-old suddenly blurted out that Ortiz confessed to him. What really happened will remain a mystery because the veteran detectives laughably claimed they didn't know how to record the statement.
•The following year, with Ortiz in custody based on Santos' alleged word, Petersen said jail deputies overseeing more than 6,000 inmates accidentally placed informant Donald Geary in a cell next to the defendant, and a clairvoyant Geary knew to directly contact Rondou, lead investigator on the case, with claims of unintentionally capturing a second confession.
As regular Weekly readers know, a 52-year-old U.S. Supreme Court case called Massiah bans government officials and their agents—such as snitches—from questioning defendants who've been formally charged with a crime and have legal representation. An exemption is triggered when an inmate overhears the target incriminating himself without prompting. OCDA and OCSD officials have tailored their stories to fit that exception.
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Remember the neutral witness, Alvarado, whose observations about the Adame killers didn't delight Petersen? Miraculous good fortune struck again for the prosecutor. During Ortiz's January 2014 trial, sheriff's deputies set up the witness and the defendant by placing them together, and pretended the production had been an accident.
"Given the history of this case and the misconduct which occurred within the jail involving the movement of prisoners/informants into position to obtain incriminating statements against Ortiz, such a placement of Alvarado and the defendant was not an accident," Loewenstein asserts. "[I believe] it was part of an ongoing operation to obtain evidence against Ortiz in violation of his right to counsel."
Here's where the depths of OCDA crookedness sink to a new low. Alvarado's story didn't change from 2006 to 2014, and he refused to conjure up pro-prosecution statements, so Petersen punished him. Officers twice "accidentally" placed the witness and Ortiz in the same cell and then the deputy DA asked Alvarado on the witness stand if he'd known the defendant. He said no. Having slyly orchestrated the placement of the men in a room with a video camera, Petersen declared the footage proved Alvarado committed perjury. Loewenstein argued the government-staged encounters proved nothing because Alvarado likely assumed the question had been: Did you know Ortiz before the killing? Judge King thought the development was meaningless. He blocked its admittance.
But Petersen wasn't done. He left King's courtroom, filed felony perjury charges and tossed on a gang enhancement that carried a potential extra 10-year-minimum prison sentence. For more than 1,130 hours, an arrested Alvarado remained locked in jail, unable to afford $50,000 in bail.
"During Alvarado's time in custody, Petersen made him aware that in order to have his perjury case dismissed, Alvarado had to say [Ortiz] confessed to the Adame murder while both were being held in the holding tank at the courthouse," said Loewenstein. "Alvarado refused to succumb to Petersen's threats and went to a preliminary hearing maintaining his innocence."
At that April 2, 2014, hearing, Superior Court Judge Francisco Briseño, a former prosecutor, wasn't impressed with Petersen's tactic. He dismissed the case. The OCDA power play made its point, however. At this year's trial, Alvarado seemed afraid to have any memory of what he witnessed.
District Attorney Tony Rackauckas claims there is no evidence of wrongdoing by anyone on his staff, refuses to issue any punishment and angrily insists the scandal is imaginary. But a reasonable observer doesn't even need to consider the Alvarado fiasco to know OCDA, while it employs outstanding prosecutors and investigators, is a warped institution.
One of the agency's main witnesses against Ortiz is Cabezas. Not only did he drive the getaway car that belonged to his mother, but he hated the target of the shooting, a rival gangster who'd been sitting in a wheelchair next to the victim. Cabezas also owned the 9 mm murder weapon that somehow needed to be relocated to Ortiz's hand.
Petersen, who resigned and moved out of state last year after a judge in a death penalty case accused him of committing perjury, gave Cabezas a choice: Testify he'd willingly given his gun to Ortiz, a person he'd never met before the night of the killing, and, as a reward, win a generous benefit. Or fail to cooperate and face a prison term of life without the possibility for parole.
During the 2014 trial, Loewenstein confronted Cabezas, asking, "You're not going to do one single day for the murder of Adame; isn't that the deal?"
"Yes, sir," he replied.
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