Recent Proof of Prosecutorial Misconduct Mirrors OCDA's Bad Old Days
After a Friday night of eating pizza, drinking booze, dancing and smoking hashish with friends in Laguna Beach, 20-year-old Ginger Lorraine Fleischli disappeared. Two days later, farm workers discovered Fleischli's corpse in a sleeping bag buried in an Irvine field, just 10 miles away. Her killer used a knife to stab her five times in the head near her right ear. DNA analysis also showed she'd had intercourse shortly before her death.
The gruesome, Sept. 12, 1981, crime didn't originally garner much attention outside of Southern California, but 33 years later, the case still reverberates in courthouses and law schools throughout the nation. But its notoriety didn't originate from outstanding law-enforcement work. To win convictions against two men--including the death penalty for one defendant--an Orange County prosecutor employed tactics abhorrent to critics across the political spectrum.
Inside the Orange County district attorney's office (OCDA), however, the cheating didn't prompt apologies or spark reforms. On the contrary, the prosecutorial villain in the Fleischli case, Mike Jacobs, became a celebrity among his colleagues, who were awed by his aggressiveness. In one of his first acts upon election to DA in 1998, Tony Rackauckas--then a 55-year-old former prosecutor and superior court judge--rewarded Jacobs with a promotion to his management team.
* * * * * During a rare cool, drizzling day in late April, Rackauckas hosted the Orange County Victims' Rights March & Rally in Santa Ana. The DA's annual event, now in its seventh year, has become a well-choreographed public-relations spectacle for TV news people, with music, banners, testimonials by a few victims and speeches by politicians eager to align themselves with law enforcement. At this event, the now-72-year-old Rackauckas hailed his own "40-year fight" for criminal-justice reform. He declared, "Orange County is and has always been the place where reform begins."
The statement was an act of defiance, but not because of the Fleischli case. An unrelated ethical dispute prompted Rackauckas and Jacobs to part ways long ago. Yet, this county--with a population larger than 20 states--is once again in the midst of a monumental criminal-justice-system scandal. Prosecution-team shenanigans have marred at least 36 recent or ongoing cases, including five death-penalty trials. The plots involve winning convictions with a triple courthouse whammy: using jailhouse informants to violate constitutional protections for in-custody defendants, hiding exculpatory evidence and committing perjury to cover up the tactics.
It's not just defense lawyers, law professors, crime victims, justice-reform organizations and journalists who are alarmed by the revelations in the past 15 months. In March, Superior Court Judge Thomas M. Goethals made an unprecedented, historic move after announcing he'd lost confidence in Orange County homicide and gang prosecutors to obey simple legal rules of conduct. Goethals, a onetime prosecutor and campaign contributor to the DA, recused Rackauckas and his entire staff from People v. Scott Dekraai, the capital case stemming from the 2011 Seal Beach salon massacre.
Though visibly peeved by negative media coverage, Rackauckas is sticking to the déjà vu playbook he used decades ago in the Jacobs fiasco. He denied any prosecutorial misconduct. But the Fleischli case and today's OCDA messes are eerily similar in their manipulation of the criminal-justice system with the misuse of informants to tilt trials in the government's favor. Will wayward prosecutors ever clean up their acts?
Finding suspects in Fleischli's murder was not difficult. Police arrested two of several men who'd partied with her before her disappearance, David William Leitch and Thomas Martin Thompson. An intermittent Fleischli paramour, the violence-prone, unemployed Leitch had threatened to kill the victim 10 days before her demise because he believed she was disrupting his attempts to rekindle a marriage to a woman on the verge of receiving a large personal-injury settlement. Thompson, his roommate in a coastal Laguna Beach apartment near Pacific Coast Highway, was a photographer with a clean criminal record. He said he'd had sex with Fleischli, passed out after consuming copious amounts of alcohol and hash, and didn't wake up until the next morning.
Jacobs' case had strengths. Thompson initially told minor lies when questioned. The crime lab found his DNA in the victim's vagina. Forensic testing also linked Leitch's shoes to prints found at the burial spot, as well as fibers on the corpse to ones located in his pickup truck.
OCDA charged both men with rape and murder. During the preliminary hearing, prosecutor Daniel Brice voiced his version of the crime, claiming Leitch was the "only person" with a motive and "recruited" Thompson to assist. To bolster that stance, Brice summoned four jailhouse informants to testify: Daniel Vogel, David Wright, Timothy Gravelle and Robert Evans. Each inmate claimed Thompson admitted he'd had consensual sex with Fleischli and afterward helped Leitch kill her.
That narrative didn't last, however. The office reassigned the case to Jacobs, who tried Thompson first, but dropped the first four informants in exchange for two new ones, Edward Fink and John Del Frate. This duo claimed Thompson confessed he'd raped Fleischli, then murdered her to cover up his sexual assault, and that Leitch aided only with the disposal of the corpse. In 1984, Jacobs successfully urged a jury to impose the death penalty against Thompson for committing rape and murder.
Prosecutors are ethically mandated to seek justice through fair trials--not just engineer purported facts in an effort to win cases. But for Leitch's trial, Jacobs abandoned the story he told to put Thompson on San Quentin State Prison's death row. Reverting back to OCDA's original version, he argued evidence proved beyond a reasonable doubt that Leitch murdered Fleischli. To do so, Jacobs sidelined Fink and Del Frate and instead used the original four informants. He also summoned Thompson's defense witnesses to testify, the same ones he'd blocked from participating in the death-penalty case.
"So we have to ask ourselves, 'Why would Mr. Thompson murder Miss Fleischli alone in an apartment where he lived with no transportation, no means to move the body and wait for Mr. Leitch to come home to be an A-1 witness for the murder of his ex-girlfriend?'" the prosecutor asked--in direct contradiction of his argument at Thompson's trial. "'Is that reasonable or logical?'"
The tactic worked. In 1985, Jacobs won the case, and Leitch received a second-degree murder conviction with a term of 15 years to life. At the time, nobody understood the extent of the prosecutor's cheating or could have known that OCDA would continue the same informant abuses to the present era.
Josue Rivas/OC Weekly
Inside a cluttered office on the top floor of an Eastern-bloc-, 1970s-style government building in Santa Ana, Assistant Public Defender Scott Sanders' eyes don't leave an important document as he fields multiple, rapid-fire work calls. But the process isn't seamless. Not exactly a master of modern technology, Sanders--a Prius-driving husband and father of three overachieving kids--labors to figure out how to use his less-than-coveted-brand cell phone. "Oh, come on!" he pleads with the device before laughing at himself.
But the 23-year attorney, a Chicago native who graduated from the University of Wisconsin and obtained his law degree from Emory University in Atlanta, doesn't struggle to answer questions about Orange County's festering informant scandal. Sanders possesses an encyclopedic mind. Without looking at records, he can regurgitate names and dates, as well as the contents of police interviews, testimony, court rulings and obscure sections from old legal briefs.
This expertise isn't surprising. While simultaneously--and separately--representing accused killers Dekraai and Daniel Wozniak, Sanders became curious about suspicious law-enforcement moves and what he perceived to be a lack of transparency. With law clerks, he spent a year digging and pieced together more than 60,000 pages of records to outline how prosecution teams, including Sheriff Sandra Hutchens' deputies inside the Orange County Sheriff's Department (OCSD), secretly used informants, and then hid the evidence unless it benefitted the government's trial position. In late 2014, he awed defense lawyers across the state when he discovered OCSD operates a clandestine, 25-year-old records system called TRED. The system contains exculpatory data for defendants, but agency officials had considered the database outside the reach of court orders for discovery.
According to Sanders, he so far has found 18 cases of prosecution teams improperly withholding informant records from the defense, and he wonders how many more examples remain hidden. The callousness of the process isn't only seen in the Thompson matter, but also in the case of Luis Vega, a 14-year-old boy accused of attempted murders. Prosecutors kept Vega in custody for two years until 2010, long after they received valid informant evidence of his innocence.
The DA's reaction to the revelations hasn't been appreciative. Trying to capitalize on unsavory stereotypical images of ambulance-chasing defense lawyers, Rackauckas wants the public to believe Sanders is the person gaming the system and unfairly tarnishing his prosecutors. Meanwhile, since November, his office has quietly dropped or reduced sentences in four murder and attempted-murder cases rather than risk additional embarrassing disclosures of cheating that trials would have likely produced.
It's safe to say that at the DA's headquarters, Sanders is the most loathed person on the planet. Prosecutors insist their courtroom opponent is too quick to see imaginary conspiracies. He doesn't care. Sanders is offended Rackauckas, Hutchens and their staffs claim ignorance of the abuses as excuses for avoiding needed reforms. "OCDA and OCSD officials have had a collective commitment to defying discovery [of evidence] laws," says Sanders. "They possess a deeply entrenched mindset of ignoring the unreliability of informants, the improper use of informants and the concealment of informant evidence during trials."
With Thompson awaiting execution, a state appellate panel, the California Supreme Court and Governor Pete Wilson couldn't find anything troubling about the death-penalty conviction. Indeed, Wilson said it would be "an absolute tragedy and a travesty of justice" to upset the case. But in 1997, judges at the U.S. Court of Appeals for the Ninth Circuit were aghast. They attributed the lack of a fair trial to extensive shenanigans by Jacobs and defense lawyer Ron Brower, who was trying to get hired as a deputy district attorney while representing Thompson.
According to the federal judges, Brower's performance had been "constitutionally deficient" by failing to effectively challenge the informants' veracity as well exploiting holes in Jacobs' case. For example, the court observed key forensic evidence the defense lawyer failed to advise jurors about: "Both the lack of [semen] drainage [from the victim's vagina onto the crotch of her pants] and the infrequent sperm suggested that Fleischli had douched or washed after sex, consistent with consensual sex, but not with rape" followed by murder.
The ineptitude plus what they saw as Brower's shifty, post-trial explanations alarmed the judges because of the dire stakes. "Brower somehow found it unnecessary to pursue readily available evidence that would have undermined the state's rape case," they ruled. "Absent Brower's ineffectiveness, the outcome of Thompson's trial would in all probability have been different--he most likely would not have been convicted of the rape or the rape special circumstance, and therefore could not have been sentenced to die."
Jacobs' tactics also "fatally" undermined confidence in the conviction, according to the federal judges. They opined, "A prosecutor cannot, in order to convict two defendants at separate trials, offer inconsistent theories and facts regarding the same crime."
Labeling Jacobs' scheme unethical wasn't a close call; the court ruled it flagrantly violated the "bedrock" of "well established" due process principles.
The judges also slammed the prosecutor for hiding two key pieces of exculpatory evidence from the defense and the jury. After his arrest, Leitch told police he'd arrived home at 3 a.m. on the night of Fleischli's death and found Thompson engaged with her in consensual sex before he left. The statement increases in potency considering it did not help Leitch's case.
During Thompson's trial, the only alleged evidence of a rape was provided by Fink, whom Jacobs told the jury was credible. He also vouched for Del Frate. "There's no reason whatsoever they have to lie," the prosecutor said during closing arguments. "There's no motive to fabricate."
Jacobs' assertion misled the jury. Del Frate, known by relatives as "a pathological liar," attributed to Thompson's supposed confession erroneous information contained in newspaper articles. The prosecutor also kept secret that Fink--a heroin addict and career criminal--had plenty of motive to tell the prosecutor what he wanted to hear. For years, his snitching for law-enforcement agencies in Orange County, Long Beach and Los Angeles had resulted in a long list of perks. Hidden records show cops gave him special transportation, easier bail terms, shorter jail sentences, cash, in-custody housing perks and occasionally allowed him to escape charges after being caught committing crimes. Telling the jury his motive for squealing on Thompson was based on heartfelt sympathy for the victim he'd never met, Fink denied receiving any benefits for aiding Jacobs, who quietly lifted the informant's parole violation hold after receiving his help.
Another piece of explosive evidence never reached the Thompson defense despite legal mandates. OCDA's "informant index" carried a formal entry made a year before Jacobs employed Fink. It stated, "Unreliable operator."
Summing up their contempt for the prosecutor's conduct, the federal judges observed he "manipulated witnesses and evidence" in a "desire to win at any cost."
For several decades, Mark Scott Cleveland served as an informant who helped Rackauckas win convictions in the 1980s when he worked as a deputy DA. OCDA has called Cleveland as a witness on multiple occasions over the years. Though the agency's informant index listed him as a "problem informant" who "cannot be trusted," those assertions were rarely shared with defense lawyers. In fact, prosecutors--including Marc Rosenberg, now a high-ranking supervisor known for his gruff, hardball mindset--used Cleveland to claim he'd heard damning jailhouse confessions and vouched for his credibility.
This informant is unquestionably part of the county's criminal-justice legacy. In April 1989, the Los Angeles Times published "Jailhouse Snitches: Trading Lies for Freedom." The news article quoted Steve Vulpis, then an LA County Jail inmate, who admitted he and other informants told prosecutors anything they wanted to hear in order "to go home."
The story also quoted one informant from OC: Cleveland. He was blunt in his assessment of courtroom shams conducted by other snitches and sponsored by the government, saying, "A way you can get around maybe not being able to get a confession right away [from a targeted inmate] is create one."
* * * * * Following the Ninth Circuit's potent rebuke of the fairness of Thompson's trial, the case landed at the U.S. Supreme Court in April 1998. Chief Justice William Rehnquist's 5-4 majority at the time had spent years erecting a series of legal hurdles protecting state prosecutors from claims by wronged defendants. Critically, this majority of justices backed tough procedural measures designed to block lower federal appellate courts from stepping in to protect individuals whose constitutional rights had been trampled.
Rehnquist's majority didn't care that Thompson's lawyer failed to meet constitutionally minimal defense standards or that Jacobs used two contradictory theories. They weren't troubled the prosecutor hid potentially trial-changing evidence. They conceded the two informants had little or no credibility. They even ignored a remarkable amicus brief filed by seven pro-death-penalty federal and state prosecutors, who urged them to call off the execution because of Jacobs' ethical breaches.
"There are many disturbing aspects to the convictions and death sentence rendered and upheld in Thompson's case that leave us little confidence that the death penalty is appropriate in this case," the prosecutors wrote.
Rehnquist and his allies weren't disturbed. In a polarizing ruling, the court rejected the appeal based on a technical blunder. Neither Thompson nor his lawyers erred. Ninth Circuit judges coming to the defendant's aid inadvertently missed a deadline to challenge the state's execution order, a point the court deemed outrageous. Besides, Thompson's appeals should have been halted early in the process because, the court declared, he could not prove his innocence to Jacobs' charges.
In 2007, OCDA prosecutor Dan Wagner won a conviction against Anthony R. Navarro Jr. for allegedly ordering the execution-style murder of Buena Park trucking company owner David Montemayor five years earlier. Navarro, an admitted Mexican Mafia associate with onetime upper-level organized-crime authority in the San Fernando Valley, had claimed he couldn't have participated in the gang hit because the Mexican Mafia (a.k.a. La Eme) wanted him dead for working as a law-enforcement informant. Wagner belittled the testimony.
But it was true Navarro bravely served the FBI, the Los Angeles Police Department (LAPD) and the Alcohol, Tobacco and Firearms (ATF) agency. He foiled an Eme plan to kill an undercover LAPD cop, infiltrated a Mexican drug cartel and also snitched on what would become the Montemayor killing (see "Dial Eme for Murder," April 17). On two separate occasions, he'd called to alert officers to a pending Orange County murder-for-hire plot involving a businessman.
Wagner dismissed the contacts as a ruse to concoct an alibi. But the government failed to surrender a Mexican Mafia hit list that named Navarro as a target for murder, a document the defense views as critically supportive of the defendant's story**. Asked last year by Sanders and this year by the Weekly why the potentially vital piece of evidence never found its way to the defendant's lawyers for trial, Wagner said he couldn't recall. Navarro awaits execution.
* * * * *
On July 13, 1998, all the potential judicial and political roadblocks to Thompson's lethal injection finally vanished. California Attorney General Dan Lungren assured the public the system had worked perfectly and advised there was no cause for alarm. Lungren said, "Let there be no mistake about this, Mr. Thompson is a guilty man."
Shortly thereafter, inside San Quentin State Prison, a reportedly withdrawn Thompson, 43 years old and described by officials as "a model prisoner," sat in a deathwatch cell with his reverend and ate his last meal: Alaskan king crab, salad, fried rice, spare ribs, a chocolate sundae and Coca-Cola.
At 11:52 p.m., guards escorted him into the execution chamber and strapped him to a padded table. Outside the prison walls, more than 100 protesters holding lit candles and handmade posters gathered in the presence of TV-news camera crews. A catheter to deliver a fatal dose of narcotics--sodium pentothal, pancuronium bromide and potassium chloride--was plunged into Thompson's arm. To the end, he maintained his innocence and blamed Leitch, now 56 years old and housed at the low-security Avenal State Prison. One minute past midnight, the dose entered his body, taking less than four minutes to kill him.
After the death, prison Warden Arthur Calderon released Thompson's final statement: "For 17 years, the AG has been pursuing the wrong man. In time, he will come to know this. I don't want anyone to avenge my death. Instead, I want you to stop killing people. God bless."
Veteran deputy DAs like to roll their eyes in contempt at Sanders or mad dog him in courthouse elevators or chat unflatteringly about him when he's present. A judge who once regularly said hello in hallways stopped doing so. Wary of OCDA retribution, some colleagues in the local defense bar fear being seen talking to him in public.
But Sanders' outrage isn't based on a popularity contest. Besides, he's focused on his clients: Dekraai and Wozniak, both of whom he agrees should be given terms of life in prison without the possibility of parole for their crimes. He worries one or both might someday be executed followed by even greater revelations of additional prosecution team mischief to secure their deaths. And he's pondering future capital cases here.
"The defense bar's ability to expose this misuse of informants, and thus protect defendants from conviction based in part on illegal and dishonest activity, has been fatally compromised by law enforcement's systematic concealment of evidence in this county," he says. "Unfortunately, that history continues to the present day, without any sign that the OCDA, the OCSD or other law-enforcement agencies have the slightest intention of changing their methods of operation."
Sanders says it's time for honest prosecutors to end their silence.
"Not a single prosecutor or officer has been held accountable for the illegal and unethical conduct that has taken place," he said. "This shows that there are far too many members of the OCDA and OCSD who either endorse cheating or lack the courage to stand up to their colleagues who cheat."
Rackauckas believes Sanders is overdramatizing the mess. The DA claims errors by his staff and police agencies can be solved by training sessions and increasing his annual budget. Part of that training is apparently nefarious. His deputies have spent the past six months demanding judges seal records so reporters cannot monitor questionable maneuverings.
But Kate Corrigan, a former prosecutor and current defense attorney who serves as president of the local criminal defense bar, says the DA is fooling himself if he believes retraining is the only solution. "The systematic problems [Sanders discovered] demonstrate that a major cultural change needs to occur throughout law enforcement in Orange County," she said. "Internal educational programs are not enough."
**[Correction & Update: This article originally noted that two documents were hidden from Navarro's defense lawyer. But two months after publication OCDA officials advised they'd reviewed files and found only one key piece of evidence, the Mexican Mafia hit list with Navarro's name on it, had not been surrendered. Prosecutor Wagner says the short-changing of the defense wasn't intentional because he claims he never received the information. A report by a sheriff's deputy about the hit list, however, indicates it was forwarded to OCDA during Navarro's 2007 trial and more than seven weeks before the jury recommended the death penalty. From his perspective, Wagner maintains its disclosure would not have aided the defense and shouldn't result in a vacated conviction. Navarro, who sits on San Quentin State Prison's death row, wants a new trial. Earlier this month, Wagner supplied his response to the Orange County Register: "Hell no!"
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