In yet another unambiguous, if reluctant, signal of Orange County's troubled jailhouse informant program, a prosecutor this week dismissed attempted murder charges in a case that could have carried life in prison punishment, a move with potential dubious motives counter to the public interest.
Make no mistake: People v. Bryant Phillip Islas joins a list of recent homicide cases the Orange County district attorney's office (OCDA) has ended by handing incredibly favorable plea bargains to suspected killers and attempted murderers.
Like in People v. Joseph Govey, People v. Leonel Vega and People v. Isaac John Palacios, prosecutors quietly gave Islas a March 17 sweetheart deal to avoid a trial scheduled that day.
In the ongoing scandal that resulted last week in a superior court judge kicking District Attorney Tony Rackauckas off a death penalty case, an Islas trial would have produced additional, new evidence of cheating by prosecutors, sheriff's deputies and Santa Ana Police Department detectives–or, as Rackauckas is labeling the corruption: acts of benign negligence that coincidentally tilted cases in favor of the government.
But cheating followed by hiding evidence of that cheating from judges, defense lawyers and juries is hardly benign, especially when that scenario has occurred in more than a dozen felony cases.
Before we return to the Islas matter, consider a brief reminder of well established court rules, rules that average, first-year law school students grasp but Rackauckas' veteran prosecutors insist they're just now comprehending.
First, once a criminal defendant has been arraigned by a judge and has legal representation, government actors–even jailhouse snitches working for the state–cannot take steps like asking the target questions about the crime. To do otherwise, is called a Massiah violation.
Second, under federal law, prosecution teams cannot hide evidence that might be favorable to a defendant and, under state law, they must turn over all statements of a defendant as well as statements of witnesses the government intends to call at trial.
Here's the trickery part that law enforcement is using as a tactic to deny cheating: If an informant merely overhears a confession and government officials claim they haven't taken direct steps to participate in a listening post type scenario, a defendant's statement can be used.
The rules really aren't difficult to understand. But in the Islas case, Orange County prosecutors took him to trial in 2012 and failed to convince a jury he was guilty. In the aftermath and on the way to the scheduled second trial, prosecutor Erik Petersen announced revealed a jailhouse informant who told authorities before the first trial that he'd secured Islas' confession. Those statements would be used to secure a second-round conviction, according to Petersen's plan.
Then, in late January 2014, an explosion rocked Orange County's central courthouse in Santa Ana and we're still calculating the number of casualties.
Assistant Public Defender Scott Sanders, who represents Seal Beach salon massacre killer Scott Dekraai, filed a bombshell, 505-page brief with excruciating details of law enforcement lies to mask corrupt use of their informant program. Accustomed to being the aggressors on the a daily basis in court, prosecutors and sheriff's deputies called Sanders nuts, or worse. But the power of his work can't be denied when you know that by the end of last year OCDA officials were forced to admit their nemesis had been right: They'd botched several murder trials by hiding–accidentally, of course–exculpatory evidence tied informant use.
So, in the Islas case, Sanders' revelations put Petersen, who already been booted from another 2014 case for improper secrecy, in a yet a new awkward position. According to defense lawyers, not only had he failed his discovery obligations leading up to the first trial, but the evidence he'd kept secret proved additional cheating: Jailhouse informant Brian Ruorock had been working to win Islas' confession with the illegal aid of Special Handling Unit Deputy Seth Tunstall and SAPD detective Rudy Reynoso. To hide Ruorock's government work, Petersen failed to surrender relevant reports written by Tunstall and Reynoso.
Petersen denied any wrongdoing to me, but it gets worse.
The hidden reports by Reynoso and Tunstall, who was declared a perjurer in a separate case on March 12 by Superior Court Judge Thomas M. Goethals, contain evidence that undermines not just the officers' credibility but also Ruorock, their planned second trial ace.
According to law enforcement records obtained by OC Weekly, Tunstall and Reynoso met secretly with inmate Ruorock, a parole violator, inside the Orange County Jail at 2 p.m. on Nov. 29, 2011, 53 days after Islas' arrest.
A report of the meeting written by Reynoso describes in detail how Islas allegedly confessed to using a .357 gun in an attempt to kill Michael Salinas, who police claim is tied to a Mexican Mafia figure, in Santa Ana with a .357 gun.
"Islas 'hits up' Salinas and shoots him at close range about six times," Reynoso recorded in his notes from the Ruorock debriefing. "[Islas] tells Ruorock that he shot Salinas in the stomach and chest area. Islas tells Ruorock that the police found out he was the shooter because someone 'ratted' on him and they found a picture at an unknown location where Islas is wearing a black Angel cap and is with one of the other Alley Boy gang members involved in the shooting. Islas told Ruorock that the Angel cap in the picture is the same cap he was wearing when he shot Salinas. Islas told Ruorock he did not know the name of the guy he shot until the newspaper put his name in the paper and he got his legal discovery from his attorney."
Reynoso concluded by declaring that officers had not shared any information about the crime with Ruorock prior to the meeting.
Bingo! Crime solved, right? So, why didn't Petersen introduce that report and call Ruorock as a witness during the first trial?
Answer: Several weeks after the Nov. 29, 2011 debriefing, Ruorock wrote a note to Tunstall–a message that was also hidden from the defense–and it asked OCJ deputies to relocate one of Islas' cellmates who has been advising him not to talk about his charges. But the second part of that same note is far more damaging to the prosecution team. It states, "Islas trusts me & likes to impress me by bragging. I'm fairly confident I can get him dead bang on this Salinas shooting & probably several others given the chance to get him talking."
But why would Ruorock state on Dec. 15, 2011 that he is "fairly confident" he can get an Islas confession in the Salinas shooting when the officers reported from their debriefing 16 days earlier that the snitch already captured the aforementioned incriminating statements?
The possibilities are two: Ruorock violated Massiah before the Nov. 29 meeting and the prosecution team wanted the rat to win a second, repeat confession–this time secretly recorded and without probing questions, a scenario where Petersen might try to continue to hide the snitch from view. Or, is it possible that Ruorock fabricated Islas' confession while seeking to reduce his own incarceration term?
(Questioned last month about the discrepancies, Tunstall admitted the contradictions didn't look good and that he'd accidentally overlooked the Massiah violations; for her part Sheriff Sandra Hutchens claims she didn't know of any informant program woes.)
With Rackauckas and his top assistants in circle-the-wagon, defensive mode and pretending they're not entangled in a serious ethical problem, we may never know exactly what happened. But there's no doubt that the law enforcement cheating ultimately benefited Islas. He faced a potential maximum 40 years to life in prison sentence if conviction at the second trial. Petersen approved a sweetheart deal for a six-year term, which–given time already served–means Islas will likely be released in 2016.
"Frankly, the fact that we got any plea at all is good for the People," OCDA Chief of Staff Susan Kang Schroder said about Petersen. "This has nothing to do with Dekraai."
As for Petersen, he explained that the Islas deal wasn't any sort of cover up. He said three major factors weakened his case: Some witnesses altered their stories, Salinas didn't exhibit any desire to cooperate and his two most trustworthy eyewitnesses weren't excited about testifying at a second trial after being traumatized by the shooting.
"There wasn't any conspiracy," said Petersen, who insists he didn't violate any discovery obligations in the case and blames screw-ups at the sheriff's department not on deceitful deputies but on a lack of training by sheriff's management.
"If documents came into my possession, I turned them over [to the defense]" he said. "But I can't turn it over if I don't have it."
You're probably thinking I've exhausted this tale. That would be an error. There's one more major piece of damning evidence against prosecutors.
Oscar Moriel was a prized jailhouse snitch for Orange County law enforcement. A Mexican Mafia serial killer, Moriel–who is now in the federal witness protection program–advised law enforcement in writing before the first trial that Salinas was a member of Delhi, a rival gang to Islas' Alley Boys.
Here's where it really gets worse. According to court records, Moriel also told police that he received information Salinas was a participant in an another attempted murder OCDA was hoping to pin on 14-year-old Luis Vega. However, Salinas' alleged involvement in that crime was hidden from Islas' defense.
As I wrote in December (See, "How OC Law Enforcement Locked Up An Innocent 14-Year-Old Boy for Two Years"), Moriel's notes showed Vega was innocent, but OCDA didn't seem to care. That crucial information was kept secret and Vega remained incarcerated for more than 700 days. He emerged back into freedom without an apology.