Tony Rackauckas' Truth or Consequences: DA Continues Dropping Cases To Avoid Disclosures
Bob Aul/OC Weekly
Up until Sept. 22, Santa Ana defense attorney Renee Garcia had waited more than 400 days for the Orange County district attorney's office (OCDA) to fully obey pretrial ethical rules about sharing evidence in an attempted murder case. Garcia wanted prosecutor Beth Costello to turn over records of informants who'd aided the government in what turned out to be a problematic solicitation-of-murder case against Garcia's client, Joseph Govey. The massive consumption of time included six months of Costello repeatedly assuring Garcia she would surrender the evidence but reneging each time. Realizing she was being stonewalled, the lawyer wrote three separate motions to Superior Court Judge Thomas M. Goethals in hopes of compelling production of the records.
But with Goethals favoring Garcia's position, Costello declared at a May 16 hearing she'd been mistaken by asserting there were no files whatsoever to share--especially on Alexander Frosio. He's one of the prosecution's key snitches and a serial residential burglar whom other inmates say worked at the request of Orange County Sheriff's Department (OCSD) deputies to plant "happy cards"--mail laced with heroin--in targeted inmates' cells. Exactly three weeks later, Garcia showed the prosecutor gotcha evidence. In a different ongoing case in the same courthouse, Larry Yellin--one of Costello's colleagues--admitted the agency possessed a 3-inch-thick stack of Frosio-related informant records.
The development drove Costello back to her original stance that there had been evidence all along, and she was now working to provide it to Garcia. The prosecutor explained the flip-flopping at that point by saying she'd been too busy on other cases to focus.
Yet, precisely three weeks later, Costello--who'd then been assigned the Govey case for 815 days--flip-flopped on her previous flip-flop. She claimed again that no Frosio files existed and explained to Goethals that Yellin's declaration to the contrary "was new" to her. On that very day, one floor down in the county's central courthouse, Frosio testified before Judge William R. Froeberg in another case that he'd been ordered by OCSD deputies to memorialize his extensive snitching in writing and had given the records to officers.
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It's difficult to imagine Costello's alleged confusion about this rat's activities. She is the person prosecuting Frosio--who is facing six felony counts and California's Three Strikes law--and is, at least partially, in charge of his informant benefits. And she's part of a year-long OC scandal that has seen District Attorney Tony Rackauckas' office go to extreme lengths to keep evidence away from defense attorneys.
Costello's oral gymnastics on the Govey case have been particularly convoluted. By the time of an Aug. 29 hearing with Goethals, she had returned to admitting the Frosio records existed, but said she "honestly" hadn't known about them until that point. The exasperated judge remarked he'd previously been "stern" about his orders to obey discovery rules.
"Right," replied the prosecutor, who still hadn't surrendered the records to Garcia. "And I think we've made a lot of progress."
At that hearing, Costello told Goethals she possessed "two binders" containing Frosio's informant documents and her legal assistant was in the process of scanning the material for surrender to the defense. The judge wanted to know if the size of the files matched the 3 inches shown to Froeberg in his chambers three months earlier.
"No, no, no," replied the prosecutor. "It wouldn't be even half of an inch."
Incredibly, Costello still wasn't done flip-flopping on her flip-flops. She obviously did not want Garcia to learn the contents of the Frosio files and potentially undermine the validity of the government's case against Govey, who acknowledges he was a member of the white-supremacist Public Enemy Number One Death Squad decades ago. The prosecutor needed an excuse to continue her herculean stalling charade, and thanks to her colleagues, she had plenty of options.
Under attack all year by Assistant Public Defender Scott Sanders, who'd revealed extensive government cheating in high-profile gang and murder cases, OCDA prosecutors have spent 2014 offering lame, ridiculous or downright dishonest explanations for not surrendering exculpatory evidence to their courtroom opponents. For example, veteran Deputy DA Erik Petersen insisted he didn't understand what first-year law students know about discovery obligations. Homicide-unit director Dan Wagner claimed he hadn't been interested enough to become thoroughly aware of collected evidence in his People v. Scott Dekraai, a pending death-penalty case involving Sanders. Still other prosecutors, too numerous to name, simply provided inaccurate statements that records didn't exist or had been lost.
Marc Rozenberg--an often-cantankerous senior OCDA manager known for eagerly piling on charges to intimidate suspects--won the award for creatively solving discovery failures in two separate Santa Ana murder cases. In late September, Rozenberg offered Isaac John Palacios, the defendant in the killings, a sweetheart deal: If Palacios allowed him to close the matters before trial--one by dropping the charges entirely, the other by getting a second-degree guilty plea--the punishment would be probation with no prison time. The killer accepted and hours later walked out of the Orange County Jail.
Though she had that smorgasbord of excuses and maneuverings as options for her next stall tactic against Garcia in the Govey case, Costello became even more inventive. While at the Aug. 29 hearing she told Goethals she had "seen" the Frosio files, September brought yet another version. She claimed she never bothered to look at the files. With Goethals' patience running out, the prosecutor proved her overarching priority wasn't the attempted-murder case, but maintaining secrecy of the files, which contain at least one document wrecking Frosio's trustworthiness as an informant.
On Sept. 22, the prosecutor entered court and shocked Garcia. Rather than obey Goethals' orders, Costello decided to voluntarily dismiss the 128-week-old charges of solicitation of murder, attempted murder and street terrorism against Govey.
Costello vigorously disputes she has played discovery games. "Documents were never hidden," she said. "The records [that were not turned over] are irrelevant or, we strongly feel, involve informant safety issues more important than the case."
Garcia disagrees and continues to challenge remaining, less-serious charges stemming from a wild, high-speed chase in August 2011 involving parolee Govey, a U-Haul truck and the Huntington Beach Police Department (HBPD) whirlybird, HB-1. Law-enforcement snitches--Frosio, Carl Johnson Jr. and Arthur Palacios--worked to reduce or eliminate their own prison punishments by claiming Govey also sought to have a longtime HBPD snitch, Marcel Irizarry (a.k.a. Solo), killed. But the thought of sharing supportive records paralyzed Costello and the OCDA. Garcia told OC Weekly the evidence hiding "represents a pattern of misconduct" by prosecutors who "are cutting corners left and right."
The 49-year-old Govey is an intense, colorful character, with a husky 5-foot-8-inch frame and scars from an unsuccessful Aryan Brotherhood-ordered murder attempt on him during a Pelican Bay State Prison stint years ago. Given his numerous encounters with law enforcement, he believes prosecutors, deputies and gang cops are as dangerous as, if not more than, street hoodlums. His jailers have repeatedly placed him in housing situations he says jeopardized his life, then ignored his protests.
When Costello dismissed the charges, Govey said he thought, "It's cool that baloney got dropped." But he quickly realized the impetus of the OCDA decision had been nefarious. He wants to know what they are hiding. "Now, when I look back at it, it makes me mad that they did all this shit to me in the first place," he said. "I'm glad [charges were dropped], but I'm pissed off."
Costello doesn't want Govey to get too excited, saying, "He's still facing life [in prison]."
UPDATE, Oct. 2, 2014: Hours after the publication of this report, the district attorney's office formally dropped all remaining charges against Govey. Go HERE to see that update.
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