Massiah Complex: Judge Considers Perjury Findings Against Deputy In Death Penalty Case

OCSD playbook

Law enforcement cheating in courthouses usually gets ignored because otherwise-decent cops, prosecutors and judges remain mum, and the offenders go unpunished or, worse, win promotion. But the beginnings of a potential, cleansing tidal wave is moving through California’s criminal-justice system. Last month, a three-judge panel at the United States Court of Appeals for the Ninth Circuit shattered that silence on government officials lying.

Though the use of jailhouse informants is a well-established police tool, it’s also known that rats–commonly the most despicable inmates–won’t hesitate to lie to juries in exchange for valuable, government-supplied perks. Cops and prosecutors, as theoretical guardians of truth and justice, would never allow an informant to give false testimony. But as Ninth Circuit panel of judges Alex Kozinski, Kim McLane Wardlaw and William A. Fletcher knows, reality isn’t so immaculate.

A recent appellate case, Baca v. Adams, sparked the panel’s ire because of numerous outrages committed to win and maintain a conviction in a 1995 double murder in Riverside County. A key prosecution witness, who was an informant, bolstered credibility to a jury by deceitfully claiming he wasn’t receiving government benefits in exchange for testimony. At a second trial, a second prosecutor got the first prosecutor to give false testimony about the informant; the two prosecutors allowed the informant to escape perjury charges. The California Attorney General’s (AG) office tried to hide the informant’s sweetheart deal from a state court of appeal–in effect covering up the ethical breaches. The AG’s office refused to discipline the two prosecutors, and then the office, now occupied by Kamala D. Harris, urged the federal appeal panel to ignore all the transgressions.

During Jan. 8 oral arguments, Kozinski asked Deputy AG Kevin Vienna if Harris “really wants to stick by a conviction obtained by lying prosecutors.” If so, he said, the judges would write an opinion that would “not be pretty.” Weeks later, the AG, a San Francisco Democrat hoping to replace Barbara Boxer in the U.S. Senate, agreed to set aside the Baca conviction “in the interest of justice.”

In Orange County, it’s far less likely–if not unheard of–for judges to hold dishonest government agents accountable. I’ve covered our courthouses for two decades and can’t recall a single time when a judge punished a law-enforcement officer for lying. For example, Judge Robert Fitzgerald in 2005 ignored fraudulent statements by a police dog handler and declared that “innocent people get convicted, too,” before sending James Ochoa to prison for a robbery the Buena Park teenager was later absolved of committing. And Judge Sarah S. Jones protected Orange County Sheriff’s Department (OCSD) investigator Christopher Catalano during a 2009 hearing in which the deputy denied threatening an Anaheim suspect, but an audio recording captured him promising to “make something up” if he didn’t win a confession. Plus, Judge John Conley in 2011 refused to officially rebuke two OCSD deputies, Michelle Rodriguez and Brad Carrington, after they gave false testimony concealing critical, exculpatory evidence in a Laguna Niguel burglary trial.

Given the entrenched willingness to allow dirty cops to go free, it’s not surprising testilying continues. But, at least for now, the who-polices-the-police question isn’t entirely hidden from public view. Inside the courthouse domain of Judge Thomas M. Goethals, several deputies, including Seth Tunstall, are hoping to outrun perjury charges in People v. Scott Dekraai, the case of the confessed killer in the 2011 Seal Beach salon massacre.

They better run fast.

Fifty years ago, the U.S. Supreme Court ruled in Massiah v. United States that the constitution bans government agents, including surrogates such as informants, from eliciting incriminating statements from individuals who have been charged with a crime and are represented by an attorney. If a defendant freely blabs on his or her own, the information is usable. But officials cannot take steps to violate the protection by, say, moving jailhouse informants into locations designed to elicit statements or having informants ask their questions.

There are basically two ways for defense lawyers to see if Massiah is obeyed: Officers such as Tunstall, assigned to the OCSD’s Special Handling unit in the jail for a decade, honestly answer questions and faithfully comply with the court-ordered surrender of jail records. In Dekraai, there has been a lingering question: Did officials violate the Constitution when Fernando Perez, a Mexican Mafia killer and prolific informant, landed in a cell next to the defendant and obtained crime details as well as legal strategies pertaining to a possible death-penalty punishment?

Prosecutor Dan Wagner insists the placement of the two men together in a pool of 6,000 inmates was accidental, but it didn’t help his cause that he spent years concealing related records from Scott Sanders, the assistant public defender representing Dekraai. After an intense, year-long investigation, Sanders produced a 505-page report describing how OCSD officials routinely hid jail-informant records and committed perjury to cover up questionable activities in dozens of felony cases.

Over the protests of prosecutors, Goethals conducted a four-month evidentiary hearing into the allegations in 2014 and, in August, ruled officials hid records, faked memory losses and committed perjury. But the judge declined to name the liars and, in additional lame judicial gymnastics, declared the cheating hadn’t been malignant. He also accepted that Perez’s cell placement hadn’t been a Massiah scam.


Sanders, who is quite the detective, continued to dig after the ruling and uncovered new evidence that Tunstall committed a hoax on Goethals. It turns out that OCSD maintains a secret records system called TRED, which indicates special handling deputies had, after all, controlled Perez’s whereabouts near Dekraai. Worse, the agency has been concealing the existence of TRED records for 25 years. That’s a huge deal. During that period, tens of thousands of defendants were convicted without knowing if those entries contain exculpatory evidence.

In the wake of the revelations, the judge this month reopened the special hearings, and Tunstall, who’d pretended the records didn’t exist during six days of 2014 testimony, now claims that he, the author of thousands of TRED records, simply forgot about them. Besides, the 16-year OCSD veteran suggests, his answers might have been technically accurate if, like him, someone is confused about the difference between “informant” and “information provider.” He also said he can’t be responsible for his informants’ plots to evade Massiah prohibitions because, while he received their notes detailing the planned scams, he hadn’t bothered to digest the contents, but, by golly, he can now see his alleged laziness was an error.

To Sanders, the claims by a deputy with a doctorate in clinical psychology are preposterous. He may not be alone. Goethals, who has advised Tunstall of potential obstruction-of-justice charges, wanted to know if the “first place” to look when questioned about inmate movement should be TRED records.

“Yes,” the deputy replied. “That would be a place I would look.”

So why had he pretended the records didn’t exist?

The answer is ugly: OCSD officials think they can pick which judicial orders to obey–and concoct ridiculous excuses for secrecy when caught. After all, they short-changed Sanders, then blamed him for delaying the Dekraai case. Memory loss aside, Tunstall, who declined an interview, told Goethals the public agency deemed the information “confidential” to itself.

The judge now has a second opportunity to hold the cheaters accountable.

(This article appears in the print edition as “Massiah Complex: Orange County Sheriff’s Department Officials Reluctantly Admit They Hid Records from Trials For 25 Years.”)

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