Judge John D. Conley Helps Prosecutors Punk Scott Sanders Yet Again

Judge John D. Conley Helps Prosecutors Punk Scott Sanders Yet Again
Luke McGarry

Murder cases usually contain intrigue other than, of course, the killer's identity. Matt Murphy, a senior deputy district attorney with the Orange County DA's office (OCDA), is fond of telling juries that questions arising during trials can't always be answered. Not surprisingly, an unsolved mystery emerged in People v. Daniel Wozniak, Murphy's latest courthouse adventure—another one recorded by television-network cameras for national, primetime feature stories.

Assistant Public Defender Scott Sanders, who represents Wozniak, claimed evidence, including internal police conclusions, suggests his client's murder-time fiancée, Rachel Buffett, was the crafty mastermind of a financial panic that led to the May 2010 killings of Orange Coast College students Sam Herr, 26, and Juri "Julie" Kibuishi, 23. We may never truly know if he's right. Murphy charged Buffett as an accessory after the fact for repeatedly lying to Costa Mesa police.

Homicide cases often produce bizarre twists, too. In Wozniak, Superior Court Judge John D. Conley, once a member of the OCDA unit that employs Murphy, worked in tandem with the prosecutor to block Sanders from telling jurors the truth about Herr. The medal-earning U.S. Army combat veteran in Afghanistan was an obvious victim in the present case. But he was also a killer—and not just on foreign battlefields.

On Jan. 16, 2002, in Los Angeles, authorities found Bryon Benito dead in a parking lot. Benito's skull had been cracked open and mutilated. His torso, neck, back and hands endured ghastly penetrations. According to Los Angeles Sheriff's Department (LASD) reports, the person who set up the murder was the last person seen with the victim: Herr.

In the killing's aftermath, Herr, who'd initially denied accountability, admitted his key role. Though Benito had been his buddy since childhood, he'd aided a Mexican Mafia-associated organized crime outfit, the Brown Familia (BF) gang, in the murder.

"I was cool with the BF," Herr stated, according to court records.

The BF wanted to attack Benito for an alleged gang-war slight, and Herr volunteered to lure his friend to the "perfect" secluded spot without surveillance cameras. His ruse? Let's go smoke marijuana.

Herr picked up Benito at his home and drove him to an awaiting group of eight thugs holding knives, bats and tire irons. "I saw him fall," Herr recalled for detectives. "I saw him get up, and then they're mobbing him."

The unarmed, terrified ambush victim cried out for his pal's help while enduring more than 30 knife wounds and 20 bone-crushing tire-iron blows. Herr ignored the pleas, according to LASD interview transcripts. Though deputies arrested him, a judge ruled his incriminating statements could not be introduced at trial—not because they hadn't been honest admissions, but rather because they were uttered after the police conducted an illegal traffic stop. Unaware of the confessions, a jury acquitted him.

Murphy ignored the LA murder to portray Herr as an angel. Comparing him to Wozniak, whom he said was a horrible friend willing to kill a pal, the prosecutor told jurors, "What's interesting as you go through this [case] is how many people consider Sam to be their best friend" and labeled him "this friendly guy that everybody considers to be their best friend."

Murphy elicited supportive testimony.

"Sam was a very friendly person, and he was the same way he was with me with others," testified Ruben Menacho, a fellow OCC student. "He was always nice to everybody."

Nobody doubts that at the time of his murder, Herr had become a better man than the one who set up Benito. He'd entered the military, fought bravely in combat and collected a group of genuine admirers, one of whom he incorrectly assumed was Wozniak.

While agreeing nothing justified his client's heinous acts, Sanders claimed his courtroom opponent had given the jury a misleading, incomplete picture in hopes of enticing them into a heightened emotional outrage for an execution vote.

"Mr. Herr repeatedly admitted his culpability for the murder of his good friend," the defense lawyer told Conley outside the presence of jurors on Jan. 6. "Nonetheless, the prosecution in this case chose to place before the jury, via commentary and evidence, a picture of Mr. Herr as a person of exceptionally high character—including, most notably, in his interaction with and loyalty to friends."

Murphy argued he hadn't "opened the door" requiring the jurors to learn about Benito's demise, and the judge agreed, saying he didn't want to "dirty up" the victim on the verge of a death-penalty vote. To support his decision, Conley misapplied case law, citing People v. David Keith Rogers, a 2006 California Supreme Court ruling. He claimed the case allowed him to exclude Herr's murder admissions because he "felt that other evidence gave the jury a fair picture of the victim."

But in Rogers, jurors received reports that the victim had serious character flaws that invited danger. The judge in that case merely blocked the defense from introducing additional testimony on already-mentioned topics. In Wozniak, however, Conley prevented jurors from learning even one negative fact about Herr.

Plotted judicial assistance to OCDA didn't end there. On Jan. 7, the prosecutor addressed the jury for nearly four hours in a superb, gut-wrenching performance that prompted jurors to weep in the hallway. At the end of that presentation, when jurors were exhausted, Sanders was given 70 minutes to speak. The following day, a Friday when the matter wasn't in session, Conley issued a startling minute order. He announced plans to violate his original rules for the closing arguments: Murphy would go first, followed by Sanders.

"The court ruled on the issue of jury arguments with the assumption that both arguments would conclude in one day, so the court ordered one argument per side," the judge explained. In the midst of Sanders' closing, which would resume after the weekend, on Jan. 11, Conley said he thought the prosecutor should rebut the defense lawyer's arguments because, he fretted, "jurors may have difficulty recalling exactly what Mr. Murphy said on the various topics being discussed."

In other words, the judge wanted to reward Murphy with an unplanned, second speaking chance because the prosecutor monopolized the overwhelming majority of the one day Conley assumed would be necessary for closings. Or was it because Sanders might have scored points? Whatever the motivation, the judge cast his proposal as an innocent attempt—one oddly concocted without Murphy's urging—"to level the playing field" for the prosecutor, who'd addressed the jury for several hours longer than the defense.

Sanders objected, recalling that the jury had been told how the closings would work, asserting the citizen's panel would assume he'd done something wrong that required Murphy's re-entry, and calling the judge's concern of memory-loss jurors unreasonable. "[The jury is] going to think you want a death penalty verdict here," he said.

To the prosecutor's frustration, Conley reluctantly retracted his proposal. Sanders was right; he said he shouldn't "take any chance" jurors would receive "a hidden message" if he revised the schedule for Murphy.

Was there any legitimacy to the hand-wringing about forgetful jurors? The answer is undeniable. On Jan. 11, the jury took just one hour to side with the government's push for Wozniak's death.


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