More than a year after Gustavo Orejel was arrested for allegedly firing a handgun at a car full of gang members, prosecutors still have no physical evidence of his guilt, and have yet to interview two mystery witnesses whose identities remain shielded from Orejel's defense team.
"We generally don't [interview witnesses prior to trial], because we don't want to taint the evidence through resuggestion," said Susan K. Schroeder, a District Attorney spokesperson. "The most reliable evidence comes from the original statements, before [witnesses] can be pressured by law enforcement or other individuals."
By that standard—the importance of "original statements" and the danger that police "or other individuals" might "taint" witness testimony—the evidence in Orejel's case is singularly unreliable. At his preliminary hearing a year ago, the only evidence came not from witnesses, but from a Santa Ana police officer who testified that two mystery witnesses identified Orejel as the shooter. But that officer's police report makes it clear that Witness No. 1 never saw Orejel fire a gun. Witness No. 2 apparently knew Orejel, but somehow failed to identify him until 10 days later—and then only when she accompanied Witness No. 1 to police headquarters to talk with Santa Ana investigators.
On the basis of such flaccid evidence, Orejel, a 22-year-old Santa Ana resident with no record of violent crime, has spent the past year facing a February trial and the prospect of a life sentence. Police have offered no gun, no victims, no blood—nothing but two mystery witnesses.
Orejel's attorney Vincent LaBarbera says it's unfair to keep him from questioning witnesses in a case in which eyewitness identification is the only evidence against his client (see "No Gun, No Witnesses, No Problem," Nov. 28). "Why should a young Hispanic man be restricted in this manner?" he asked. "The most unreliable evidence is eyewitness evidence, especially if a person is trying to identify something that they have seen in the middle of the night. I don't have any particular ax to grind with the OC DA's office, because the law allows them to do this, even if it is fundamentally unfair."
State law allows prosecutors to shield the identities of witnesses in gang-related or violent crimes until 30 days before trial. Ironically, District Attorney Rackauckas, who runs the office prosecuting Orejel, co-authored the law. Long before he was elected DA, Rackauckas was an Orange County Superior Court judge who, with local prosecutors, wrote Proposition 115, the so-called Victim's Bill of Rights. California voters overwhelmingly passed the measure in 1990.
Police say Orejel is a member of the Santa Ana-based Alley Boy street gang. The DA's office says Orejel meets several of their criteria for gang members: he lives with his brother and brother-in-law, both of whom are Alley Boys gang members; he was once arrested in a car with gang members; and he has an OC tattoo, which police claim is common among gang members in Orange County.
"All the evidence shows that gang membership increases crime, and we want to be tough against gang members," said Schroeder. "We're not going to apologize for that. We live in a democracy and [voters] can change the law . . . . But if there is any exculpatory evidence that a member of the public can provide or that the defendant himself can bring forward, we are very interested in knowing, because we are not interested in convicting an innocent person."
Orejel denies he's a gang member, adding that he has worked full-time as a photocopier technician for the past four years. He says he spends most of his free time with his girlfriend—at church or at her relatives' homes—or visiting his two god children. Several neighbors told the Weekly that Orejel isn't a gang member and said they don't believe he committed the crime (see "Gang Banged," Dec. 5).
"It certainly sounds like this is a case where the prosecution is much more interested in getting a conviction than in getting at the truth," said Paul Gerowitz, executive director of California Attorneys for Criminal Justice, which opposed Prop. 115.
"After Prop. 115, there was no cross-examination of witnesses prior to trial, and the burden of proof is now really low," Gerowitz added. "There are going to be cases where, if you could cross-examine the witness, the case might not go to trial because of major weaknesses in the witnesses' testimony."
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James Crawford, Orejel's previous attorney, unsuccessfully appealed the DA's refusal to identify the two eyewitnesses. "Absent evidence of threats or witness intimidation, the DA should not be entitled to have an upper hand in preparing their case for trial by refusing to disclose the names and addresses of the witnesses to the alleged crime," Crawford said. "This practice of systematically denying disclosure of witnesses' names and addresses rings of the Star Chamber. It denies defendants due process and the right of confrontation."
But where some see obstacles, other defense attorneys see possibilities. "As far as the system is concerned, the only problem is at trial, you might learn something that needed to be investigated earlier," says Ron Talmo, a veteran defense attorney and visiting professor at the Western State College of Law in Fullerton. "But a good lawyer can use that in front of a jury to show the problems in the prosecution's case. So in a strange way, it's my opinion that Prop. 115 should make defense lawyers do a better job."
But Talmo says Prop. 115 provides no excuse for prosecutors not to interview eyewitnesses prior to trial.
"The duty of a defense attorney is to zealously represent his client," he said. "But the duty of a prosecutor is not to zealously represent the government, it is to ensure that justice is done. So for a [prosecutor] not to have interviewed the key witness is bad lawyering . . . I don't think it's a constitutional issue, I just don't think it's professional."