The Gang's Not Here

Did three OC cops block a Los Angeles gangster's right to a public trial on attempted-murder charges? Or were officers acting reasonably when they expelled two of the convicted felon's buddies from the courtroom? And will the controversy prompt a judge to overturn the jury's 16-month-old guilty verdicts this week?

Marion H. Wheeler Jr.—defense counsel for Paul Javier Martinez—says the prosecution's “illegal, premeditated . . . egregious conduct” denied basic constitutional rights to his client during the April 2006 proceedings on the top floor of Santa Ana's 11-story central courthouse.

“A public trial helps assure that the judge and prosecutor carry out their duties responsibly, encourages witnesses to come forward and discourages perjury,” argues Wheeler. “What good is the right [to a public trial] if the prosecutor is allowed to circumvent it by unilaterally removing spectators out of the courtroom, interrogating them, and then telling them to leave?”

A jury convicted Martinez for approaching an innocent, unarmed stranger in a Mission Viejo bar, declaring his gang affiliation and repeatedly stabbing the startled man in the neck, chest and forearm. The victim—whose girlfriend had caught the eye of Martinez's gangster pal Diego Armando Vera—bled profusely and was rushed to the emergency room at Mission Hills hospital. He survived the December 2004 attack.

Martinez—who tattooed his neck with “187” (California's penal-code section for murder) and “5150” (the state's health code for a mentally unstable individual) attempted to flee the scene of the crime, but police nabbed him. In his truck, officers found gang paraphernalia. After his conviction, Martinez was set to receive punishment when he declared he hadn't enjoyed a public trial. (Deputies also arrested Vera, who had punched the victim. He pleaded guilty to assault, street terrorism and gang membership for a two-year prison sentence.)

But the expulsion incident turned the case against Martinez, 30, into a potential nightmare for the Orange County district attorney's office. DA Tony Rackauckas, a former judge, doesn't dispute that one of his investigators ejected two pro-defense observers from the courtroom. He even acknowledges that Superior Court Judge Patrick Donahue should have been the person to make the eviction call. But Rackauckas says there was never any intent to taint the trial.

But the defense is determined to capitalize on the mistake. According to Wheeler, the only fair remedy is for Donahue to reverse the jury's findings, spare Martinez from a likely life-in-prison sentence and order a new trial.

During hearings on the issue this summer, Rackauckas deputy Brian N. Gurwitz told Donahue that his agency and court bailiffs had valid security concerns about a potential witness- or juror-intimidation scheme. The two men booted from the trial were Alex and Adrian Garza. Court records reviewed by OC Weekly allege that the brothers—like Martinez and Vera—are tied to the infamous Los Angeles-based 18th Street gang, which reportedly has ties to the Mexican Mafia. The street gang's estimated 20,000 Southern California members practice drug trafficking, extortion, homicide, kidnapping, auto theft, rape, mayhem, assault, robbery, drive-by shooting and witness intimidation, according to gang cops.

“The prosecution received evidence that the defendant's associates might have been ready to inflict harm on others,” said Gurwitz. He claims that if expelling the Garza brothers “during a brief portion of the trial” was technically a legal error, it doesn't “rise to the level of a constitutional violation necessitating a new trial.”

Wheeler disagrees: “Removing the Garzas from the courtroom served to completely close the trial.” Perhaps worse, from his perspective, jurors were improperly influenced after witnessing the expulsions and concluding that the brothers “were a security risk.”

Donahue seems prepared to side with the gangster. The hint? Donahue—a former high-ranking Rackauckas deputy—interrogated Deputy Leo Minnie, and then fired him as his bailiff. Minnie's losing argument, according to court records: I did my job to protect the courtroom from a serious threat. In the case file, Donahue soberly noted, “It was inappropriate for Deputy Minnie to exclude spectators from the courtroom during trial.”

But Minnie's security fears were hardly unfounded. During the April trial, the Orange County Sheriff's Department intercepted a jailhouse kite, a terrifying clandestine communication from the defendant to a fellow hoodlum. The handwritten message said that Martinez—who was convicted of assaulting a police officer in Ventura County in 1998—wanted a “paro,” or favor: find prosecution witnesses in his case.

“I'm moving to Plan B,” Martinez wrote. “You know I always win, no matter what!”

The kite was intended for Adrian “Jokey” Garza—one of the men expelled from the trial. The El Monte resident recently told cops he isn't affiliated with the 18th Street gang, which is odd because “EIGHTEENTH” is tattooed across his stomach. Court records show that Garza has been arrested in a separate murder case and, on yet another occasion, for threatening violence. At press time, it couldn't be determined whether he had been charged in either incident.

Deputy Seth Tunstall notified Martinez prosecutor Barbara Kim about the kite and also explained that the defendant had somehow collected witness names, dates of birth and Social Security numbers. Kim shared the revelations with District Attorney Investigator Thomas Marty and Deputy Minnie. Kim reported that she didn't share the information with Judge Donahue because the DA's office was conducting an investigation into how Martinez obtained the personal data.

Imagine the surprise when “Jokey” and his brother appeared for closing arguments. They wore what Kim and Marty called gang attire—jumbo-sized white T-shirts and baggy dark pants—accentuated with shaved heads. The brothers traded smiles with Martinez but did not misbehave.

After a short period of time, Marty received a head signal from Minnie and quietly asked the Garza brothers to exit. In a hallway, the investigator (with backup from Deputy R. Thompson) questioned the men. They denied gang ties but admitted their friendship with Martinez, according to law-enforcement records of the encounter. Fearful for the safety of jurors and court personnel, the officers told the pair to leave the courthouse. The brothers complied.

Back inside the courtroom, Wheeler hadn't witnessed the expulsions, but he sensed trouble. The defense lawyer confronted Marty and Kim, who sought a private meeting with the judge in his chambers. Donahue wasn't impressed by the prosecution's concerns. After the briefing, he marched into open court and declared the Garza brothers welcome. But they were long gone.

Instead of immediately seeking a mistrial, Wheeler and Martinez rolled the judicial dice. They allowed the jury to deliberate and render verdicts. Only after he was found guilty on all counts did Martinez declare the expulsions had tainted his right to a fair trial.

To Gurwitz, tossing out the verdicts would be “manifestly unjust” to the prosecution, the jury, the victim and the public.

“Twelve people saw all of the evidence and unanimously agreed that Mr. Martinez attempted to murder an innocent human being,” said Gurwitz. “He received a fundamentally fair trial, and he deserves the punishment he now faces.”

Donahue is scheduled to announce his decision on Aug. 10.

UPDATE: Judge Donahue has delayed a decision until Sept. 7.


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