OC Judge Slams Prosecutor for Misconduct, Prosecutor Gets Promoted by DA Tony Rackauckus

OC Judge Slams Prosecutor for Misconduct, Prosecutor Gets Promoted by DA Tony RackauckusEXPAND
Bob Aul

The National Registry of Exonerations, a project of the University of Michigan School of Law, issued findings this month about the country's criminal-justice system's failures. The group reported 1,733 exonerations of prisoners in the past 26 years, including 149 cases last year, a record number topping the previous year, which, underscoring the trend, was also a record. According to investigators, prosecutorial misconduct helped secure nearly 44 percent of those bogus convictions. "Since 2011, the annual number of exonerations has more than doubled," the authors noted. "We now average nearly three exonerations a week."

There is no way to measure the true extent of prosecutorial mischief, of course, because—as we've learned during Orange County's ongoing, jailhouse-informant scandal—the public-payroll cheaters routinely escape detection. These offenders taint the process by posing Forrest Gump-oblivious to their transgressions, habitually lying, taking advantage of government secrecy and exploiting the aid of collaborators, fellow prosecutors and judges who remain mum when they see corruption. In 2010, for example, Superior Court Judge John D. Conley, a former prosecutor, refused to even lackadaisically wag his finger at two sheriff's deputies caught lying on the witness stand to help his former employer, the Orange County district attorney's office (OCDA), tilt a Laguna Niguel residential-burglary case.

There are consequences to a criminal-justice system that espouses its own righteousness but tacitly lets dirty government agents know they won't likely get caught and, if they are, will face no punishment. That's not speculation. In 2015, during another disturbing sequence of events, Superior Court Judge Thomas M. Goethals ruled two senior jail deputies repeatedly lied in a death-penalty case, but neither their boss, Sheriff Sandra Hutchens, nor the person who could have prosecuted the crimes, District Attorney Tony Rackauckas, held them accountable. Such indifference to unethical conduct serves to green-light additional duplicitous moves by individuals with enormous state power to end a citizen's freedom.

Prosecutorial cheating apparently extends to relatively minor trials, too. Late last year, our two daily newspapers, the Los Angeles Times and Orange County Register, failed to tell their readers about a troubling case originating in Irvine. OCDA officials filed a 2013 DUI charge against Sandra Goelman, who was involved in a 7:45 a.m. traffic accident with an Orange County Transportation Authority bus. The then-63-year-old Goelman hadn't consumed alcohol or illegal substances, but about nine hours before the incident, she'd taken the sleep aid Ambien.

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This otherwise-meaningless case evolved "from a normal, if there was such a thing, Ambien DUI case to a radioactive one," according to Superior Court Judge Gregory W. Jones. The mess had nothing to do with Goelman or her lawyers. The controversy centered on two questions: Did Deputy DA James Hong lie in hopes of unfairly strengthening the government's case? And, if so, what were the consequences?

In late 2014, the OCDA quietly removed Matthew Andrade, an Irvine Police Department officer who responded to the collision, as a trial witness and refused to explain why, raising suspicion for Peter F. Iocona, Goelman's Laguna Beach-based defense attorney. Iocona got a court order for the officer to appear, but he failed to show up at a hearing. During an April 22, 2015, pretrial session in Judge Douglas Hatchimonji's chambers inside the Harbor Justice Center in Newport Beach, the defense attorney reported that the cop refused to share his contact information with anyone but the OCDA. Hatchimonji asked Hong if he knew how to reach the officer. According to court records filed by the defense and reviewed by the Weekly, the deputy DA declared "he had no information regarding Mr. Andrade's whereabouts or why he did not appear pursuant to the court order."

However, three months later, on July 15, Andrade called Goelman's defense, who'd gained an arrest warrant against him for failing to appear in court, and dropped a bombshell, one he supplemented with a sworn affidavit. He claimed Hong telephoned his private cellphone on April 14 and told him not to show up for testimony. The cop wasn't guessing as to who called him; he possessed cellphone records.

Given the extraordinary trust Orange County juries typically give law-enforcement witnesses because they wear badges, why would a deputy DA want this particular cop to mysteriously disappear?

An easy answer is available. After the Goelman accident, Irvine PD fired Andrade for an act of dishonesty, according to court records. Other than Assistant DA Jennifer Contini testifying the officer "lied to a sergeant," the circumstances are not known. California law, the so-called Police Officers' Bill of Rights, blocks public access to such details.

During a Sept. 15 hearing, Hong—who joined the OCDA in August 2011 after graduating from Trinity Law School—downplayed events, but he admitted a review of his own cellphone records matched the ex-cop's time line.

Under questioning by Alan Castillo, Iocona's colleague, the deputy DA acknowledged telling Hatchimonji he had no clue how to contact the cop, even though he'd phoned the man seven days earlier for a six-minute, on-duty conversation. Believing events raised the issue of criminal witness tampering by dissuading an individual from testifying, Castillo demanded Hong explain the discrepancy. "Because I had no recollection of that conservation with Mr. Andrade," the prosecutor asserted.

Toward the end of the contentious hearing, Castillo also asked Hong if he had been confused when he told Hatchimonji he didn't know how to contact Andrade. "Yes," the deputy DA replied after Judge Jones rejected multiple objections by senior prosecutors in attendance, Sonia Balleste and Mark Sacks. "I initially felt confused about what's going on. . . . The problem is it's not my case. So it's difficult for me to be familiar with everything that's going on and feel comfortable."

The judge didn't buy Hong's claim of being unaware of Andrade's status as a "radioactive witness" for the government's case. "I cannot conceive of an innocent explanation for [the deputy DA] being mute [when Hatchimonji asked why the cop failed to attend court]," Jones ruled. "I think [Hong] realized he had made a big mistake releasing a witness from appearing on a judge's order and he said nothing. So, I do believe that there was prosecutorial misconduct. I'm convinced of that fact."

To underscore his view, the judge cited what he called a Plato quote to the prosecutors. "We can easily forgive a child who is afraid of the dark," he read aloud. "The real tragedy of life is when men are afraid of the light."

But would the OCDA be punished? No. Jones determined Goelman's constitutional rights had not been prejudiced to warrant a pretrial dismissal of the case.

Did Hong endure as much as a wrist slap? No. Rackauckas transferred him from misdemeanor duties to a more powerful division of the agency, the felony panel unit, a move that usually leads to a pay raise.

The Ambien DUI case went to trial in mid-October. Prosecutors demanded the Andrade/Hong affair be hidden because its exposure would air "a meritless" accusation that the OCDA "engaged in criminal misconduct." After four days of testimony, jurors deadlocked.


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