TV history repeats itself in OC reality: OC District Attorney Tony Rackauckas (right) and his sidekick, Dan Wagner, scrambling again to cover-up murder case cheatingEXPAND
TV history repeats itself in OC reality: OC District Attorney Tony Rackauckas (right) and his sidekick, Dan Wagner, scrambling again to cover-up murder case cheating

Will Judge Grant New Trial in Orange County Murder Case Plagued By Chronic DA Corruption?

Two bombshell revelations occurred on March 9 at an Orange County Starbucks on Beach Boulevard, where defense investigator Nicole Busse met a juror who two months earlier helped to convict 28-year-old Eric Ortiz in a controversial murder case. Juror 173 revealed that some of her colleagues on the panel of citizens argued "not to worry" about issuing a guilty verdict against Ortiz, who had been locked up for six years for a cold-case homicide he likely didn't commit, because appellate justices would overturn their decision if they'd made a mistake. Perhaps more troubling, the juror admitted she'd conducted her own investigation into the key defense witness' credibility by making personal inquiries into that person's background, court records show.

Anyone familiar with trials knows judges repeatedly admonish sitting jurors that California law prohibits them "from conducting their own investigations" or performing "any research regarding the case." The warning is backed up with a threat. "If you violate this rule," judges advise, "you may be subject to jail time, a fine or other punishment."

In May, Juror 173 used a blue pen to edit an affidavit Busse, a well-respected veteran PI, prepared based on the Starbucks meeting. Those edits didn't contradict the original story, but the juror refused to sign it, asking the investigator to rewrite the declaration to claim her research into the defense witness happened after the trial, according to court records. "[This juror] said she wouldn't sign it because she did not want to get in trouble for talking to someone about witnesses in the middle of the trial when she knew it was a violation of the judge's order," the investigator memorialized in her own sworn May statement for Superior Court Judge Michael J. Cassidy, homicide prosecutor Dave Porter and Ortiz attorney Rudy Loewenstein.

In his pending motion for a new trial, Loewenstein reported that Juror 173 told Busse "she would lie under oath" if called to testify about her conduct, adding, "This indicates [the juror] is aware that her behavior compromised the integrity of the trial and the sanctity of the jury's deliberations." He says that scenario played out this summer, when the juror took the witness stand, disputed Busse's allegations, then swiftly invoked a Fifth Amendment right to not incriminate herself in a criminal proceeding. Loewenstein argued Juror 173 couldn't credibly make a denial, and then invoke, an argument that won no sympathy from Cassidy

Porter reacted relieved to get the juror's denial on the record, followed by her refusals to answer all other questions. The deputy DA, ethically obligated to seek justice over winning cases, also sought to rattle Busse in ways Loewenstein believes crossed an ethical line. He sent an Orange County district attorney's office (OCDA) investigator to grill her at her family's vacation home. There, according to court records, the OCDA investigator asked a series of personal questions unrelated to this legal dispute.

The Ortiz case is just one in a series of tainted murder trials in which District Attorney Tony Rackauckas, homicide-unit boss Dan Wagner, their deputy DAs and local cops have proven a willingness on occasion to obtain guilty verdicts by cheating. Along with Sheriff Sandra Hutchens, their relentless defiance of ethical obligations resulted in Judge Thomas M. Goethals' historic August decision to block their demand that Scott Dekraai, the county's worst mass killer, receive the death penalty. Instead, Dekraai received several hundred years of imprisonment without the possibility of parole.

As in Dekraai, government officials in People v. Ortiz have repeatedly cheated even after being caught cheating. The case stems from the October 2006 Santa Ana murder of Emeterio Adame. Though no forensic evidence tied Ortiz to the crime scene, Erik Petersen, the original prosecutor, won a 2014 cold-case conviction after rewarding a 15-year-old snitch, Misael Santos, for claiming the suspect confessed to him. But the Santa Ana Police Department's tale of how it got Santos' statement included doctored official reports.

With the first snitch lost, Petersen reported he'd magically located a second informant, Donald Geary, a serial burglar who volunteered to testify he heard Ortiz confess. But Geary's credibility evaporated during the Orange County jailhouse-informant scandal. Contrary to prosecution-team assertions, the inmate acted as a secret government agent seeking benefits for aiding Petersen.

Playing in courtrooms nowEXPAND
Playing in courtrooms now
OC Weekly

OCDA antics weren't done. The prosecutor, who fled the state at the height of the informant scandal, made a deal with a third snitch, Sergio Cabezas, who was one of the killers: Testify Ortiz had been the shooter, and avoid even a day of prison. No fool, Cabezas agreed.

Petersen sought to further tilt the scales of justice with Jonathan Alvarado, a key independent witness for the defense. Fifteen years old at the time of the crime, Alvarado had been playing video games at home when he looked out a window after hearing nearby gunfire and saw the immediate aftermath of Adame's drive-by murder. Alvarado accurately described two killers, Cabezas and Victor Lagunas.

Critically, police reports reviewed by OC Weekly show the witness never identified anyone at the scene who came close to fitting Ortiz's physical description. From 2006 to the 2014 trial, Alvarado's statement didn't change to support the government's desired version of events. So Peterson attempted to dissuade him from testifying by charging him with perjury, advocating for a $50,000 bail he couldn't afford and leaving him locked up for more than 1,130 hours. Judge Francisco Briseño, a former high-ranking prosecutor, wasn't impressed by the stunts and dismissed the charge.

Based on all the government hanky-panky, Judge Richard King, also a former prosecutor, overturned Ortiz's 2014 conviction. With the playing field finally even, jurors at a second trial in March 2016 voted 10-2 that OCDA failed to prove its case. But having been saved from an embarrassing defeat, Porter set his sights on eliminating the defense's most valuable alibi witness, Saul Vasquez.

Employing Petersen's playbook, Porter threatened Vasquez with perjury if he testified at a third trial. The ploy worked. Recalling what happened to Alvarado when he angered Rackauckas' office, Vasquez heeded the deputy DA's potent scare tactics and refused to testify. The next jury—including Juror 173 and her mess—found Ortiz guilty.

We could learn at a scheduled Nov. 3 hearing if Cassidy—the current judge and a 2009 Governor Arnold Schwarzenegger appointee—will follow OCDA's wishes and sentence Ortiz to life in prison or if he will find the defendant was deprived of his due-process rights again and grant Loewenstein's new trial motion.

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