California prosecutors usually aren't found on the witness stand, swearing under oath to tell the truth and enduring examinations by defense lawyers, but that's exactly where Erik Stephen Petersen—Orange County's most controversial deputy district attorney during the past two years—landed again this month.
After joining the Orange County district attorney's office (OCDA) in 2001, Petersen rose to handle high-profile gang cases, including ones against the Mexican Mafia. His downward spiral began in March 2014, when Superior Court Judge Thomas M. Goethals recused him from the People v. Marcus Allen Jeffries trial for withholding documents from the defense. Petersen's image never recovered.
Outside review of his other cases revealed a pattern of problematic conduct: hiding exculpatory evidence and employing jailhouse informants to secure confessions via unethical tactics, according to records filed by Scott Sanders, an assistant public defender. Sanders confronted him a year ago in special evidentiary hearings for People v. Scott Dekraai and contends the prosecutor is a habitual liar.
To this day, Petersen—a lanky, Type A character—feels wronged by such labels. The 1999 Creighton School of Law graduate denies any wrongdoing and, in face-to-face interviews, displays razor-sharp intellect as well as occasional spurts of charisma. Admitted to the state bar 15 years ago, he effortlessly dispenses with questions from reporters unschooled in the intricacies of his cases.
Petersen's explanations, however, didn't shield him inside OCDA. He grew out of favor with management, which reassigned him to minor tasks at a DA outpost in Fullerton. He gave notice to quit and tried to distance himself from the mess by nabbing a federal prosecutor job in Nebraska. But that move failed after Cornhusker State journalists publicized his role in our snitch scandal. The past, it seems, just won't let Petersen go.
This month, Judge Richard King ordered him back on the witness stand to field questions about his January 2014 win in People v. Eric Ortiz, a cold case 2006 murder. Rudy Loewenstein, Ortiz's lawyer, has put the prosecution team under scrutiny. Having opposed Petersen in the Jeffries trial, Loewenstein believes he's facing a scoundrel. He told King that the prosecutor, Santa Ana Police Department (SAPD) and sheriff's deputies convicted his client by violating a Supreme Court ruling known as Massiah, which prohibits the government from using trickery to gain incriminating statements from pretrial defendants who've been charged and are represented by a lawyer.
From the outset of the Oct. 6 hearing, Petersen displayed contempt, announcing that prosecutors have "a much higher standard" of ethics than defense lawyers, but failing to note the reason: Prosecutors can cause the end of a citizen's freedom or life.
"[Your job as a prosecutor] is not just about winning; it's about doing justice, right?" asked Loewenstein, applying the American Bar Association's ethical standard for prosecutors. It was a simple question that didn't require malarkey.
"Well, it depends on your definition of what 'justice' is," Petersen replied. "Our ethical obligation is to prosecute cases that we believe that we can prove beyond a reasonable doubt, to turn over all relevant discovery, exculpatory discovery."
Note the distinction. His goal is winning, he said. Sanders long ago adopted a mantra: Too many prosecutors have a "win at all cost mentality," an argument that returns us to the Ortiz case.
Late on Oct. 23, 2006, gunfire killed Emeterio Adame in Santa Ana. The police effort to identify a shooter took about a month, when a gang member named "Dopey," who'd been at the scene of the crime, blamed Ortiz. But the information contradicted several other eyewitnesses who disputed the identification, and SAPD detectives such as Dave Rondou, a Petersen buddy, continued to work the case for nearly five years when they thought they hit pay dirt again.
In March 2011, officers Rondou, Roland Andrade and Jason Garcia claim they were routinely driving Misael Santos to juvenile hall when, if you believe their account, a miracle occurred. The teenaged gangster suddenly volunteered without prompting that Ortiz (a.k.a. "Termite") confessed to killing Adame. Though police detecting normally involves taping critical, case-solving witnesses, all three veteran cops supposedly forgot to bring voice recorders on the trip. When they arrived at juvenile hall, so the police account goes, the officers were again flummoxed until another miraculous discovery.
"In an effort to preserve Santos' statements, we inquired with the staff at juvenile hall if they had a digital recorder," declared an Andrade report obtained by the Weekly. "Detective Garcia explored the features on his cellular phone and learned it had a recording mechanism."
SAPD used developments to justify arresting Ortiz on April Fool's Day in 2011. But the trouble for the prosecution wasn't just that the recorded Santos statement didn't mirror what the cops claim they initially heard or their Three Stooges explanation for not recording the alleged bombshell statement in the car. The gangster's testimony couldn't be used because of credibility woes. According to court records, he'd also told the officers he wanted to become a hit man for the Mexican drug cartels and didn't care if his siblings were killed in retaliation.
For Petersen and SAPD, the third attempt to find a witness to an Ortiz confession was a charm. Sheriff's deputies housed the defendant in the Theo Lacy Jail near Donald Geary, a serial burglar. Geary was also an experienced jailhouse snitch who'd previously won punishment breaks for helping his law-enforcement handlers.
Recall that Massiah blocks the government—or its agents, including snitches—from taking steps to lure self-incriminating statements from targets. For more than six months, deputies kept Geary and Ortiz in close proximity, even during cell changes. They also didn't enforce rules that would have hampered talks between the inmates.
Less than a month before Ortiz's then-scheduled April 5, 2012, trial, Geary sent a letter to his lawyer claiming he'd obtained a confession. A smirking Petersen, who'd been laughing in the back of the courtroom with Rondou, broke the news to Melanie Bartholomew, the defendant's lawyer at the time. That testimony caused a jury to issue a guilty verdict. But before sentencing, Loewenstein, who eventually took over the case, complained. He noted the Petersen/Rondou history of manipulating snitch activities, a fact the Dekraai hearings underscored.
During King's current proceedings, four deputies who managed jail informants refused to testify, claiming their answers might lead to their criminal charges. We're left with Geary's Oct. 7 insistence that he decided on his own to snitch. Loewenstein, however, notes the rat somehow knew to tell his lawyer to contact just three of the 18 cops tied to the case—including Rondou—and he possessed the unpublicized gang-unit phone number. The snitch greeted the judge's push for explanations with conflicting, rambling answers.
That question-and-answer session wasn't the most suspicious part of Geary's story. If officers hadn't secretly prompted his aid, why had he come forward without even seeking informal assurances he'd be rewarded for risking his life? He said he learned Ortiz's victim had been "elderly," and that offended his sensibilities. But how many 45-year-old men, such as Geary was at the time, would call another man in his 50s, as was that victim, elderly?
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The next move rests with King, who must decide if Ortiz deserves a new trial without Geary's testimony.