Does prosecutorial misconduct—including violating the law in hopes of building a criminal case against a government target—warrant dismissal of the court action?
For the second time in three business days, the Orange County district attorney’s office (OCDA) found itself arguing the answer is “no.”
Last week, OCDA prosecutors defended violence committed by one of the agency’s investigators against James Crawford, a defense attorney tied to the county’s ongoing jailhouse-informant scandal, and claimed the incident should not impact any pending matters.
The agency was forced this week to explain messes in its efforts to imprison Conan Hayes—a successful ex-pro surfer, international surf-industry entrepreneur and wealthy celebrity—for alleged financial fraud regarding the 2010 sale of his Costa Mesa home.
Questions arising in the dispute include:
• Why did prosecutor Megan Wagner, a current judicial candidate and spouse of a Republican state assemblyman, illegally obtain Hayes’ Internal Revenue Service (IRS) income tax filings without a court order, a federal crime carrying a maximum prison of five years?
• Why was Wagner’s surrendered discovery missing 35 consecutive, Bates-stamped pages the defense believes could harm the DA’s case?
• Why did the prosecutor also engage in a brief December courthouse argument with Patrick Tenore Sr., after the real-estate broker who’d notified authorities of suspicions regarding the sale of Hayes’ home, said OCDA was ignoring the guilty party and “prosecuting the wrong person”?
Inside Superior Court Judge Frank F. Fasel’s courtroom on March 23, issues surrounding those questions alarmed David L. Fleck, Hayes’ attorney, who said it’s “outrageous” a law-enforcement agency would violate the law in hopes of winning a case.
“I think they’re in a box here,” Fleck told Fasel after asking for a dismissal of charges.
But Matt Lockhart, the deputy DA who argued on March 18 that courthouse-hallway beating of Crawford was meaningless to court cases, urged the judge “to be very careful here.”
“It really doesn’t matter how outrageous the government’s conduct is,” said Lockhart, without acknowledging any OCDA wrongdoing. “[Our] conduct is irrelevant.”
According to him, the key question is: Have the government’s acts trampled Hayes’ constitutional rights?
“This case can proceed to trial without infringing on the defendant’s right to a fair trial,” Lockhart explained. “We don’t have to give a windfall to a defendant just because the prosecution has done something wrong. . . . We’re not here to punish the prosecution for whatever foibles we may or may not possess.”
As for the illegally obtained IRS records, the deputy DA said, “It’s been obtained properly now.”
And the missing case-file records?
“The defendant’s argument that the People intentionally destroyed exculpatory evidence is absurd,” Lockhart told Fasel. “By his logic, the People are nefarious enough to willfully destroy favorable evidence but too stupid to hide the fact, instead opting for the neon sign [of a marker indicating missing pages].”
Fleck wasn’t impressed, noting, “This agency doesn’t really seem to grasp the gravity of what’s happened here.”
But the judge declined to dismiss the case or, alternatively, recuse OCDA.
“It’s premature,” Fasel declared. “[The issues aren’t] ripe now [and should be eventually decided by a future trial’s presiding judge].”
He also complained that the defense had “not nailed down” the IRS records claim to his satisfaction. Fleck asked the judge to tell him what other records he wanted to see, but the judge responded in classic, terse Fasel fashion.
“That’s your problem,” he replied.
Because this is Orange County, the bizarre drama didn’t end there.
Wagner, who has the backing of DA Tony Rackauckas in her quest to win a post on the bench, made a motion to formally limit the ability of the defense to communicate with Tenore, claiming she is concerned about potential “dissuasion of a witness” tactics.
Fasel asked the prosecutor if she intended to call the man as a government witness. She said she didn’t. The veteran judge was left dumbfounded.
“I’m not following the People’s logic,” said Fasel, who wanted to know why OCDA sought to block the defense from talking to one of its own witnesses.
“DAs have an obligation to protect the process,” Wagner replied. “There is good cause to believe there’s been a defense effort to have Mr. Tenore change his story.”
Fleck denied using any “defense pressure” on the witness and argued, “There’s no evidentiary basis for this motion.”
OCDA’s 2015 complaint against Hayes, the co-founder of RVCA and inventor of a children’s athletic helmets at Raskullz, asserts he falsified “financial hardship” documents while hiding substantial cash assets to win the short sale of his home, an illegal move that Wagner claims cost Bank of America more than $500,000.
“This is a paper case,” Lockhart said. “The crime is in the document the defendant submitted to the Bank of America, claiming poverty when he was actually a millionaire seven times over.”
Maintaining Hayes’ innocence, the defense has produced a handwriting expert who determined their client’s signature was forged and dates doctored in a series of key records pertaining to the real-estate transaction.
Fleck sees a troubling pattern: “Once again, OCDA has intentionally violated the rights of a defendant” in “an ill-advised, overly aggressive and blind pursuit of a conviction instead of fulfilling their mandate to seek justice, honor due process of law, safeguard the rights of each citizen and defend the integrity of the judicial system.”
R. Scott Moxley has won Journalist of the Year honors at the Los Angeles Press Club; been named Distinguished Journalist of the Year by the LA Society of Professional Journalists; and hailed by two New York Times Magazine writers for his “herculean job” exposing Southern California law enforcement corruption.