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MOTION
Defendant Scott Dekraai hereby moves this Court for an order recusing the Orange
County District Attorney's office from prosecuting this case. Said motion is based upon
this notice and motion, these Points and Authorities, Penal Code section 1424, Dekraai's
state and federal right to due process and a fair trial, the exhibits, the attached declaration
of counsel, the previously filed Motion to Dismiss the death penalty and that motion's
attached exhibits, and the testimony and evidence presented at the hearing on the motion.
It is requested that the previously filed Motion to Dismiss be incorporated by reference and
all analysis and argument contained therein be considered in the Courts ruling on this
motion.
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Recusal Motion - Dekraai
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STATEMENT OF THE CASE
Defendant Scott Dekraai was arrested on October 12, 2011 and taken into custody.
On October 14, 2011, the prosecution filed a complaint against Dekraai in case number
11CF2781.2 On the same date, Dekraai appeared for arraignment on the Complaint while
represented by private attorney Robert Curtis. The arraignment was continued at Dekraai's
request to October 24, 2011.3
On January 24, 2012, the prosecution first provided discovery related to Dekraais
contact with Inmate F.4 According to that discovery, on October 19, 2011, at
approximately 2:30 p.m., members of the Dekraai prosecution team, which included
Assistant Orange County District Attorney (OCDA) Dan Wagner and Senior Deputy
District Attorney Scott Simmons, OCDA Investigator Bob Erickson, Seal Beach Police
Department (SBPD) Detective Gary Krogman, and Orange County Sheriff's Department
(OCSD) Deputies Ben Garcia and Bieker, met with an Orange County Jail inmate named
Inmate F. at the Orange County Jail. Inmate F. was questioned about statements made to
him by Dekraai while the men were incarcerated together at the Orange County Jail.
After interviewing Inmate F., several members of the prosecution team met with
OCSD personnel and requested that a covert audio recording device be installed in
2 An indictment against Dekraai was filed on January 17, 2012, under the current case number. 3 Pursuant to Evidence Code section 452, subdivision (d)(1), Dekraai respectfully requests the Court take judicial notice of the minute orders from October 14 and October 24, 2011, in case number 11CF2781. 4 Dekraai is honoring the prosecutions previous request to use Inmate F. in place of his actual name. Additionally, similar language is being used in place of other individuals names mentioned in this brief, who have pending matters, where facts related to their case are discussed. Oscar Moriel, another informant referenced in this motion, is being identified by his actual name as prosecutors have revealed his identity in discovery in multiple cases. Moriel has also testified in three trials using his complete name.
Recusal Motion - Dekraai
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Dekraai's cell at the Intake and Release Center. The device was installed on October 19,
2011, and began recording that day at 5:37 p.m. The device recorded conversations in
Dekraai's cell from that date and time until October 25, 2011, at 4:39 a.m.5 The device was
removed from Dekraai's cell on October 25, 2011, and the recordings were copied to a
compact disc. The recording device captured a number of conversations between Dekraai
and Inmate F.
Dekraai's counsel, Assistant Public Defender Scott Sanders, filed an informal
request for discovery on October 16, 2012, seeking discovery exclusively related to Inmate
F. (Exhibit A.6) The prosecution had provided the discovery requested in paragraph one.
None of the other requested items had been discovered. (Exhibit A.)
On October 19, 2012, Sanders and Wagner7 spoke about the informal discovery
request. Wagner said he would not provide the requested discovery, as he did not intend to
call Inmate F. as a witness. Sanders stated that, nonetheless, the defense intended to call
Inmate F. at a motion to suppress Dekraai's recorded conversations with Inmate F. as
violative of Dekraai's Sixth Amendment right to counsel. Wagner reiterated that he would
not provide the requested discovery absent an order from this Court. (Exhibit A.)
On December 28, 2012, Dekraai filed a Motion to Compel Discovery, seeking the
discovery identified in the informal discovery request. (Exhibit C.)
On January 18, 2013, the prosecution filed its Opposition to Defendants Motion to
Compel Discovery, arguing the Court should not order disclosure of any of the identified
items within the discovery motion. (Exhibit D, p. 7.)
5 On October 24, 2011, Dekraai appeared in court and the Public Defender was appointed to represent him. 6 In this brief and the attached declaration of counsel Dekraai is using and citing to the same exhibits attached to the Motion to Dismiss the death penalty. The exhibits that are only found in this motion begin with Exhibit A8. 7 Individuals referenced in this motion will hereafter be referred to only by their last names for clarity and brevity, and not out of disrespect.
Recusal Motion - Dekraai
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On January 24, 2013, Dekraai filed a Reply to the Prosecutions Opposition to
Defendants Motion to Compel Discovery. (Exhibit E.)
On January 25, 2013, this Court heard oral argument on Defendants Amended
Motion to Compel Discovery. This Court ordered the items requested in Defendants
Motion to Compel Discovery.
On February 8, 2013, the prosecution provided 45 DVDs. The DVDs included
5,490 pages related to Inmate F. There are an estimated total of 1,936 audio and video files
with an approximate total length of approximately 970 hours. On February 13, 2013, the
prosecution provided a single CD with 271 pages related to Inmate F. On March 21, 2013,
the prosecution provided 68 CDs, including one with 2,479 pages of discovery related to
Inmate F. On April 5, 2013, the prosecution provided 13 pages of discovery related to
Inmate F. On April 11, 2013, the prosecution provided 14 pages of discovery related to
Inmate F. On June 7, 2013, the prosecution provided 3 CDs and 16 pages of discovery
related to Inmate F. On September 27, 2013, the prosecution provided a single one page
memorandum related to Inmate F.
On January 31, 2014, Defendant filed a Motion to Dismiss, seeking an order from
this Court prohibiting a penalty phase in this case, should Dekraai be convicted of the
special circumstances murders alleged in the indictment, or alternatively, an order
dismissing the special circumstances allegations.
//
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Recusal Motion - Dekraai
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SUMMARY OF FACTS AND BASES FOR RECUSAL
Scott Dekraai was arrested for the murder of eight people and attempted murder of
another person in Seal Beach on October 12, 2011. Several days later, a veteran custodial
informant who was facing two potential life sentences elicited incriminating statements
from Scott Dekraai at the Orange County Jail. This occurred after Dekraai and Inmate F.
were moved into adjoining cells. Inmate F. shared notes documenting his conversations
with his lead handler, OCSD Deputy Ben Garcia. Garcia spoke by telephone with DA
Investigator Erickson and then met the next day with members of the prosecution team,
including Wagner and Simmons.
After the meeting with Garcia, the prosecution team spoke with Inmate F. off the
record. During that portion of the conversation, they purportedly received assurances that
Inmate F. was not seeking a benefit for his assistance but only helping because of his moral
outrage about the crime and his hatred of Dekraai. Once they began recording the
interview with Inmate F., he restated the same motivation for providing assistance. During
the recorded portion of the interview, none of the six members of the prosecution team who
were present asked a single question that would have cast doubt upon the veracity of
Inmate F.s stated motivations for providing assistance or revealed that Inmate F. had been
working in the jails for the government for more than one year.
Inmate F. stated that he asked Dekraai about the crime before Dekraai provided
incriminating statements. Members of the prosecution team knew that even in the absence
of specific direction by the government, Inmate F.s status both as an informant and as an
unsentenced defendant facing two life sentences, incentivized him to troll the jails for
information helpful to the government. As such, prosecution team members knew that
statements obtained in response to deliberate elicitation violated Dekraais right to counsel
under the Sixth Amendment. Nonetheless, having already reviewed Inmate F.s notes in
violation of Massiah, the prosecution team continued to question Inmate F. in order to
obtain as much information as possible about what he had learned from Dekraai.
The prosecution team ultimately received a wide range of information about
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Dekraai, his mental health issues, and the crime. However, they decided to go even further
by questioning Inmate F. about Dekraais defense strategies, including what plea he was
considering in the case.
Subsequent to the interview, a recording device was placed in Dekraais cell which
captured additional incriminating statements made after virtually non-stop efforts by
Inmate F. to ingratiate Dekraai and win his confidence.
After being informed of Dekraais potential defense strategies and mental health
issues that could be relevant to the defense, the Dekraai prosecution team initiated a
separate and aggressive effort to obtain Dekraais psychological records, which included
making contact with Dekraai and asking for a release of his psychological records, even
though he was charged and had counsel at the time. After that effort failed, the prosecution
obtained a search warrant without the appointment of a special master for the records based
upon a misleading affidavit. The records were seized despite a court order directing the
prosecution not to take possession of the records until the court ruled on the legality of the
search warrant. The records were then taken to the court where they remain.
The prosecution turned over the evidence related to Inmate F. approximately three
months after the interview was conducted and recordings were obtained. However,
Ericksons report regarding the interview of Inmate F. continued to hide the prosecutions
knowledge of Inmate F.s informant background. The reports suggested that what
transpired was simply a matter of coincidental contact between inmates. However,
information known to defense counsel and its own investigation about Inmate F. raised
suspicions that the prosecution was holding back significant information about Inmate F.
The defense requested additional evidence informally and later brought a formal motion for
discoveryafter Wagner refused to turn over any evidence related to Inmate F.s
background.
Responding to Dekraais Motion to Compel Discovery, Wagner submitted a
declaration in support of his opposition, in which he claimed the prosecution would not
give Inmate F. any consideration for his efforts and reiterated Inmate F.s statement that he
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was not seeking any benefit. Wagner made this statement without revealing Inmate F.s
criminal and informant history, which would have impeached the informants stated
motives and suggested a conspiracy of concealment by the entire prosecution team initiated
before their interview of Inmate F. In fact, evidence and information in the governments
possession revealed Inmate F. to be a) a former Mexican Mafia leader who had directed
violence against fellow inmates; b) an inmate on the verge of federal RICO prosecution
because of his role in the Mexican Mafia, who avoided that prosecution because he was
permitted to become a government informant; and c) a defendant who was seeking to be
released from custody as soon as possible and trained to believe that the more valuable
assistance he provided the greater the benefit he would receive in his pending cases.
But the concealment did not end there. Wagner waited until eight months after the
discovery hearing to reveal a memorandum, entitled Informant Assistance, sent in
November 2011 by his investigator to Deputy DA Erik Petersen. Petersen, who is the
prosecutor assigned to Inmate F.s two Third Strike cases, and had begun using him as a
custodial informant after obtaining a conviction in one of the cases. The Informant
Assistance memo contradicted Wagners representations designed to convince the Court
not to order discovery, and showed that the Dekraai prosecution team very much wanted
Inmate F. to receive consideration for his assistance in the instant matter. The letter also
directed Petersen not to reveal Inmate F.s assistance in Dekraai in any other cases.
After this Court ordered discovery, Wagners interviews of Inmate F.s handlers
provided additional evidence that Wagner remained steadfastly committed to concealing
information that would reveal a) additional evidence of informant activities by Inmate F.,
b) potential Massiah violations in other cases, including a special circumstances gang
murder case, People v. Inmate I., c) the role of Petersen and potentially others in those
violations, and d) evidence that Petersenlike Wagnerhad concealed proof of Inmate
F.s informant background so that he could also unlawfully introduce statements by a
defendant in a murder case.
There was more to be learned about a lawless custodial informant program and the
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prosecutions stunning lack of respect for its discovery obligations in other documents
found within the Court-ordered items. Discovery from the nine cases that was provided
per this Courts discovery order included varying quantities of notes written by a second
custodial informant named Oscar Moriel. Eight of the cases were connected to a multi-
agency investigation by the Santa Ana Gang Task Force, entitled Operation Black Flag,
which led to numerous local and federal prosecutions. The prosecutor on each of the local
cases and those cases arising from a related effort, Operation Smokin Aces, is Petersen.
Petersen was assigned 17 cases, involving 63 defendants, related to these operations. The
ninth case included per this Courts discovery order is People v. Inmate I., which is
referenced above.
The discovery from one of the nine cases, People v. Inmate E., contains the largest
quantity of Moriels notes. A study of names identified in that set of notes and the cases
associated with those names would eventually illuminate shocking misconduct specific to
the custodial informant program, and with implications that extend far beyond it.
Among the most important findings are those directly relevant to the claim that
Inmate F. made coincidental contact with Dekraai. It would eventually become clear
that there is rarely anything coincidental about the contact between informants and the
fellow inmates who make incriminating statements in the local jails. Rather, the Special
Handling Unit of the OCSD, often in coordination with local law enforcement and the
OCDA, coordinate the movements of inmates in order to facilitate the elicitation of the
statements. The problem for the criminal justice system is that the partners on the
prosecution team have been trained to work in unison to hide evidence that would reveal
these coordinated movements, despite Brady obligations and frequent Sixth Amendment
implications. In fact, there has been one constant in their documented efforts: the
prosecution never turned over a single report or note that revealed that they had
coordinated contacts between targeted inmates and the two informants, despite its obvious
relevance to both Sixth Amendment issues and the credibility of the informants rendition
of how statements were obtained.
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The truth about these movements was not revealed by the government, which had
the obligation of candor. Instead it was the overactive pens of Moriel and Inmate F., which
unintentionally began to offer long delayed insights about the program. In selected entries
found within the notes of Moriel and Inmate F., it increasingly became clear how the
government makes its custodial informants so incredibly efficient and effective, revealing
systemic issues of deception, which further delegitimizes the Dekraai prosecution teams
description of the events surrounding the contact between Inmate F. and Dekraai.
But there was far more to learn from a study of the notes, the names identified in the
notes, and the cases associated with those individuals. Those cases are discussed in detail
within the declaration, attached herein as Exhibit A8, and within the Motion to Dismiss.
The following is an extremely brief overview: In People v. Vega, the prosecutor hid
critical informant notes that would have revealed a Massiah violation. He repeatedly
misled court and counsel about discovery issues, and suborned perjury from two veteran
detectives and Moriel. In People v. Rodriguez, the prosecutors acts of concealment
included hiding Moriels notes that would have revealed false claims of coincidental
contact, and evidence related to the Henry Cabrera cover up. The prosecutor also
suborned perjury from both detectives. In People v. Inmate I., the prosecutor again hid
evidence that would have showed the false claim that Moriel had coincidental contact
with both Inmate I. and Inmate F.8, hid evidence of third party culpability provided by
Moriel, and suborned perjury regarding Moriels notes. In People v. Camarillo, the
prosecutor suborned perjury from Moriel, and hid notes that would have impeached the
perjured testimony. In People v. Luis V., the prosecution team hid statements made by two
inmates to Moriel indicating that the defendant had not committed the crime for which he
was incarcerated. In People v. Lopez, at least one SAPD detective hid a statement received
8 There have been significant recent developments in People v. Inmate I. since the filing of the Motion to Dismiss. As discussed in detail at page 57, Petersen unintentionally admitted to discovery violations at the most recent hearing in People v. Inmate I., dated January 21, 2014.
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by Moriel indicating that another individual was responsible for the victims death. In the
Henry Cabrera cases, several prosecutors and members of law enforcement engaged in a
conspiracy over several years to conceal evidence of an inaccurate expert opinion about
gang membership that supported two convictions, including one which led to a life
sentence. Prosecutors went so far as to not charge Cabrera in a gang homicide in order to
prevent Cabreras conviction from being overturned, to protect reputations of the
conspirators, and to hide the erroneous expert opinion and misconduct from other
defendants entitled to learn about what had taken place.
The stunning disinterest in defendants rights revealed in the study of these cases is
systemic and relevant to analyzing whether the Dekraai prosecution team can be
reasonably relied upon to hand over evidence helpful to the defense relating to issues of
aggravation and mitigation.
The tremendous and wide-ranging implications for the OCDA, its partner agencies,
fellow prosecutors and members of law enforcement, and the possibility that adverse
findings could result in recusal and the dismissal of the death penalty in this case, place any
local prosecutor who would replace Wagner and Simmons in an identical position. They
would face inordinate pressure to remain consistent with the clearly and repeatedly stated
OCDA position denying the veracity of the allegations, particularly in light of the
implications of the misconduct, which are discussed:
1) Assistant Deputy DA Dan Wagner, a supervising attorney and director of the
OCDAs homicide unit, led the Dekraai prosecution team in committing
numerous serious ethical and legal violations in the instant matterentering into
a conspiracy designed to mislead court and counsel beginning before their first
recorded interview with custodial informant Inmate F. on October 19, 2011, with
the intention that the conspiracy continue through pre-trial motions, trial and any
appeals in this case. Evidence of systemic efforts to mislead regarding Massiah
violations appeared in a study of People v. Vega. In that case, Petersen led a
similarly modeled conspiracy that achieved the ultimate goal: introduction of
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statements in violation of Massiah, without counsel, the trial court, or the Court
of Appeal ever detecting the misconduct;
2) Wagner violated Brady by preventing disclosure of evidence related to Inmate F.
in other cases where he was a government informant. This was done to prevent
the Dekraai defense team from learning more about the scope of Inmate F.s
informant activities, and thereby revealing that the Dekraai prosecution team
was engaged in a cover up of those activities;
3) As the director of the homicide unit, Wagner and the Dekraai prosecution team
demonstrated wanton disregard for legal and ethical guidelines designed to
protect defendants due process rights. Wagners unwillingness to honor these
responsibilities strongly indicates that policies discouraging Brady compliance
and encouraging concealment have been actively promoted by OCDA training
and/or passively endorsed. Corroboration that the OCDA has created a culture
that devalues Brady and discovery obligations emerges from the study of the
numerous cases addressed in this motion and the Motion to Dismiss the death
penalty, where similarly shocking misconduct is detailed;
4) The OCDA led a persistent media campaign against Dekraai and his counsel to
blame them for the delays in this case that was shockingly misleading and
unethical considering their role in hiding evidence from the defense related to
Inmate F. and the custodial informant program;
5) The custodial informant program operates within the Orange County jails so that
local prosecution teams (the OCDA and local law enforcement assigned to
cases) are able to secretly direct informants to question fellow inmates and/or
facilitate contact with inmates to enable the elicitation of statements. This is
done without any concern about whether the statements are elicited in violation
of the Sixth Amendment or other laws. Evidence that the prosecution hides and
manipulates the discovery of informant evidence is discussed in the Motion to
Dismiss and the declaration attached to this motion. This evidence corroborate
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that the OCDA understands, endorses, and at times, guides these practices, so
that they can receive the full benefit of introducing statements while
circumventing Massiah;
6) Members of the Special Handling Unit of the OCSD have admitted to having
regular communication with their custodial informantsInmate F. and Oscar
Moriel each worked for the government on a daily basis for a year. Between the
two informants, there are only 5 reports totaling 20 pages, which memorialize
statements made by these informants to members of OCSD. However, the
OCDA has failed to disclose to either Dekraai or any of the nine defendants
for whom discovery was also provided, a single report or note documenting
any direction given to informants by a member of the Special Handling
Unit. Prosecutors have also not discovered a single page of notes written by
members of the Special Handling Unit, despite this Courts order that would
have required their disclosure if they existed. The absence of any such discovery
confirms a policy of the Special Handling Unit, authorized by the OCDA, to
destroy notes and/or to discourage the documentation of statements made to or
received from custodial informants unless absolutely required to support a
possible prosecution. In view of the willingness of local prosecution teams to
elicit statements in violation of the Sixth Amendment, there is every reason to
believe that prosecutors have obtained information from scores of defendants
about their charged crimes and/or privileged communications between
defendants and their counsel, which were never revealed to counsel for the
defendants;
7) Members of the Special Handling Unit and local law enforcement who have had
contact with informants have been trained not to document the movements of
informants and their targets in reports or notes, so that prosecutors and their
informants can misrepresent their communications with targeted inmates as mere
coincidental contact. Nonetheless, these practices are now understood through
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selected statements found within informant notes (primarily located within the
discovery in People v. Inmate E.) and corroborated by housing records. These
practices raise questions about the reliability of all prior convictions in which
custodial informants were called as witnesses. Evidence that would have
rebutted the coincidental contact scam was hidden in four litigated cases
discussed herein. Based upon the practices identified, all prior convictions
obtained by the OCDA based upon the use of custodial informant witnesses
should be reexamined for potential petitions for habeas corpus relief;
8) The Special Handling Unit regularly relocates informants and targets housed
within the Orange County jails into nearby housing locations, including
disciplinary isolation modules. The use of the Dis-iso scamplacing an
informant and his target in disciplinary isolation to convince the target that the
person building a friendship with him is not an informanthas proven to be an
extremely effective tool. However, the evidence that is obtained after a target is
placed in isolation based upon false or trumped-up rules violations certainly rises
to the level of outrageous governmental conduct. A rule violation that is
unsupported by a good faith factual determination violates Cal. Code Regs. tit.
15, 1080 1084, which regulates placement in disciplinary isolationand is
akin to making a false arrest to permit the collection of evidence. Statements
obtained in this context amount to outrageous governmental conduct, and may
potentially lead to their exclusion even if elicited prior to the filing of charges
putting in jeopardy the prosecutions of numerous local and federal
investigations, including Operation Black Flag and Operation Smokin Aces.
This practice has additional, serious implications if fabricated findings and
supporting evidence of rules violations have been placed in inmates permanent
files, affecting their incarceration status in local and federal facilities. These
practices further support the need to reevaluate all convictions in which the
prosecution obtained information from custodial informants for potential
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habeas corpus relief. Based upon the findings in this case, any and all
defendants whose cases included testimony from custodial informants should be
permitted to reexamine the circumstances leading to their contact with the
informants;
9) Evidence discussed herein and in the Motion to Dismiss demonstrates that the
OCDA discourages accurate documentation of confidential informant efforts
within the agencys Confidential Informant (CI) files. The evidence indicates
that the OCDA has refused to take logical steps to ensure that all informant
efforts connected to a particular Deputy DA or police agency will be identifiable
by prosecutors who have discovery obligations related to their informants. This
is shown powerfully by the OCDA CI file for Inmate F., which is missing entries
for three capital defendants from whom Inmate F. elicited statements: Scott
Dekraai, Daniel Wozniak and Inmate M. There is yet a fourth defendant who
was charged with attempted murder, Inmate S., for whom there is also not an
entry. Neither Dekraai nor any defendant housed in the Orange County
jailsparticularly those defendants charged with very serious crimescan
have any reasonable confidence that they have been provided with all
statements shared with the prosecution by its network of custodial
informants. These concerns are further enhanced by the conduct of the Dekraai
prosecution teamled by the supervisor of the OCDAs homicide unit
demonstrating that this agency and its leadership believes it acceptable to work
with informants to collect information about privileged defense information,
including strategies;
10) Prosecutors necessarily rely upon the informant witnesss CI file to comply with
their Brady obligations, by identifying prosecution files that contain other
statements by the same informant. However, the complete indifference and lack
of meaningful oversight by the OCDAs leadership in maintaining a reliable file-
keeping systemallowing some prosecutors to hide entries and others to make
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entries through negligenceassures that many defendants fail to receive Brady
discovery regarding informant efforts to which they are entitled. As such, every
past conviction in which an informant has been used, whether custodial or
otherwise, should be reviewed to determine whether the defendant was deprived
of evidence that would have had a bearing on the witnesss credibility. This
could potentially require the reexamination of hundreds to thousands of
cases;
11) Those who have access to evidence received via the custodial informant
program have repeatedly shown their belief that evidence collected from
informants that is helpful to the defense of charged or convicted defendants,
including evidence that defendants are innocent, can be withheld from those
defendants. This is demonstrated in People v. Inmate I. (concealment of
informant notes indicating that another individual admitted to one of the charged
murders); People v. Ricardo Lopez (the concealment of informant notes
discussing another individuals culpability in a murder for which Lopez is
serving a life sentence); People v. Luis V. (concealment of statements by two
inmates to an informant indicating that Luis V. did not commit the attempted
murder for which he was charged); and People v. Henry Cabrera (concealment
of statements received by an informant indicating that Henry Cabrera was
improperly serving a life sentence for membership in a gang of which he was not
a member.) Local prosecutorial agencies have decided that informants should be
available solely to further the prosecutions narrowly defined view of success: a
win for the prosecution. Considering the relatively tiny quantity of notes
obtained by Dekraai as compared to the universe of informant notes, the only
reasonable conclusion from this study is that that prosecution team members
have routinely concealed such evidence relevant to the accuracy of criminal
allegations;
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12) Petersen, Mark Geller, and Rahul Gupta elected not to pursue special
circumstances murder allegations against Henry Cabrera for the murder of
Ruben Cabanas because the effort would have undermined the viability of
Cabreras current life sentence (arising out of a jurys incorrect finding about
gang membership), demonstrated years of concealment by numerous prosecutors
and members of law enforcement, undermined the credibility of SAPDs most
experienced gang officer and other officers who either furthered the cover up or
had knowledge of it and did nothing, revealed significant Brady violations
affecting numerous cases, and required re-examination of thousands of cases in
which the wrongdoers participated as prosecutors or investigators. This
evidence also further corroborates that the OCDA has failed to set up any
meaningful oversight system, which is necessary to ensure that prosecutors and
local police agencies adhere to legal principles and ethical rules;
13) The misconduct committed by Assistant DA Wagner, Deputy DA Simmons,
Deputy DA Erik Petersen, Deputy DA Mark Geller, Deputy DA Steven
Schriver, Deputy DA Rahul Gupta, DA Investigator Robert Erickson, SBPD
Detective Krogman, Special Handling Deputy Ben Garcia, Special Handling
Deputy Seth Tunstall, SAPD Detective David Rondou, SAPD Detective
Matthew McLeod, SAPD Detective Charles Flynn, and former SAPD Detective
Ronald Castillo, requires the re-examination of each and every case in which
they were either an assigned prosecutor or assigned investigator. This could
lead to the reexamination of thousands of cases;
14) There should be immediate habeas corpus review in the following cases
discussed and further identified herein: People v. Vega, People v. Ricardo Lopez,
People v. Camarillo, People v. Henry Cabrera I, People v. Henry Cabrera II,
People v. Brambila II, People v. Galarza, and People v. Gabriel C., as a result of
the misconduct and newly discovered information detailed in these motions;
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15) Erik Petersen is the sole assigned prosecutor in each of the Operation Black
Flag and Smokin Aces cases. As of February 13, 2014, there were 56
remaining defendants and 10 defendants already convicted, associated with these
operations. Petersens stunning and sustained misconduct in his prosecution of
People v. Vega, People v. Camarillo, People v. Rodriguez, People v. Inmate I.,
his rampant deception, suborned perjury of Oscar Moriel with the knowledge of
Special Handling Deputy Seth Tunstall, and concealment of informant notes
calls into question the reliability of each of the identified Mexican Mafia
prosecutions;
16) Petersens misconduct, including his efforts to suborn perjury of Operation
Black Flag informant Oscar Moriel, has likely caused irreparable damage to
numerous pending federal Black Flag prosecutions that rely upon Moriels
testimony and undermine the reliability of informant evidence related to those
prosecutions. (It is also unlikely that Petersen shared with federal authorities
that Inmate F. committed perjury at his own trial, and as a result likely was not
introduced during his grand jury testimony in federal proceedings.);
17) Petersen has apparently hid from alleged Delhi gang members whom he has
prosecuted that he had a potential bias against them: he had purportedly been
threatened by Delhi gang member Leonel Vega after the prosecutor obtained a
special circumstances murder conviction marred by massive misconduct. The
decision to conceal this threat also implies a significant lack of oversight by
supervising attorneys, who seemingly would have required that this personal
motive be revealed to defendants charged with crimes related to alleged Delhi
activity;
18) An independent prosecutorial agency should examine whether Petersen should
be prosecuted for suborning perjury in People v. Vega, People v. Rodriguez and
People v. Camarillo. A prosecutorial agency should also examine whether
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Moriel (in Vega and Camarillo), Rondou (in Vega and Rodriguez) and McLeod
(in Rodriguez) should be prosecuted for committing perjury;
19) The misconduct detailed in these motions may have significant impact on
pending legislation opposed by the California District Attorneys Association,
and permit a jury instruction helpful to the defense regarding that misconduct.
On February 7, 2014, the California Assembly passed a proposed Penal Code
Section 1127j, which states the following:
(a) In any criminal trial or proceeding in which the court determines that the prosecuting attorney has failed to disclose specified materials and information required under current law, including Section 1054.1 and Brady v. Maryland (1963) 373 U.S. 83, the court shall instruct the jury that the intentional failure to disclose the materials and information occurred and that the jury may consider the failure to disclose any circumstantial evidence to support the presence of reasonable doubt. (California Assembly Bill No. 885, introduced Feb. 22, 2013 by Assembly Member Ammiano, and attached herein as Exhibit A10; Aleaziz, Bill Would Bolster Brady, Daily Journal (Feb. 3, 2014), attached herein as Exhibit A11.)
This legislation will now be subject to a vote by the California Senate. The
California District Attorneys Association is opposed to it. The CEO of that
organization, Mark Zahner, stated that, Youre talking about extremely rare
instances happening in speaking of Brady violations. (Exhibit A11.) The Motion
to Dismiss reaches a very different conclusion, with the supporting evidence
suggesting that Brady violations are common, often egregious, and relentlessly
hidden by prosecutors and their agents. Therefore, the OCDA has yet additional
incentives not to acknowledge the wrongdoing alleged in the Motion to Dismiss.
Proof of these allegations would severely damage the arguments of Zahner and the
prosecutors he represents throughout the state, and lend powerful support for the
passage of this legislation. The consequences do not end there. While systemic
Brady violations described in the Motion to Dismiss may be a critical factor in
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whether the law is passed, Brady violations specific to Dekraai would support use of
a jury instruction modeled after the proposed Penal Code section 1127j. As has
been discussed at length, the misconduct by the Dekraai prosecution team
undermines any reasonable faith that the prosecution will provide evidence helpful
to the defense on issues of mitigation or aggravation. If the legislation passes,
Dekraai intends to request an identical jury instruction mandated by the bill, with
the exception of replacing the language, the jury may consider the failure to
disclose as circumstantial evidence to support the presence of reasonable doubt
with the jury may consider the failure to disclose as circumstantial evidence that
the prosecution has concealed evidence helpful to the defense that is related to
issues of mitigation and aggravation.
In essence, while the recusal of Wagner and Simmons is obviously required, another
attorney from the same office is situated in an equally conflicted situation. On that
prosecutors shoulders would be the burden of protecting their office, other agencies, and
their fellow employees from the consequences detailed above. The bases for the conflict
have tremendous implications for the future of the OCDA, its attorneys, local law
enforcement, the custodial informant program, and federal and state prosecutions.
There are implications for the acknowledgement of wrongdoing or adverse findings
detailed above. Any Deputy DA who would replace the current prosecutors who
determined that the Motion to Dismiss accurately stated the misconduct that has occurred,
would also recognize that admitting this could reasonably lead to the following
determinations by the public, the judiciary, county supervisors, and legislatures and other
prosecutorial agencies:
1) The leadership of the OCDA and the OCSD has, at a very minimum, disserved
the criminal justice system through willful indifference to systemic misconduct;
2) The entrenched culture of misconduct both in the OCDA, the OCSD, and the
SAPD requires outside investigation, grand jury proceedings, and oversight by
independent agencies to assure sustained changes in practices and culture;
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3) The refusal to heed rules governing disclosure of evidence to defendants suggests
that neither Penal Code section 1054 nor Brady are satisfactorily protecting
defendants rights to a fair trial and due process in the Orange County criminal
justice system. If the allegations are true, members of local and state government
may decide that special legislation is required to ensure that the rights of defendants
in this county are adequately protected;
4) Although habeas corpus proceedings in California are unfunded, defendants
should receive habeas counsel in the cases implicated by this motion, with the costs
potentially absorbed by the OCDA if these violations resulted from systemic
policies or wide-scale negligence;
5) It is no longer clear that the OCDA will seek convictions, as well as the ultimate
punishment of death, in a manner that is fair and which ensures that verdicts will not
be subsequently undermined by revelations of hidden evidence and misconduct.
The repeated acts of misconduct detailed herein support that concern. Evidence of a
moral compass that has gone far off course is seen in the suppression of evidence
pertaining to custodial informants, as well as their choice and treatment of
informants. For instance, informants such as Inmate F. (who committed perjury at
his own trial) and Oscar Moriel (who committed perjury at the trials of others with
the help of the OCDA) have also been given extraordinary roles in the criminal
justice system and a pass for their extensive criminal history and extreme violence.
Oscar Moriel, for instance, is no longer facing a life sentence on his attempted
murder because of his cooperation. Yet, he has testified in cases to killing multiple
peoplein People v. Camarillo stating that he murdered up to five, maybe six
victims. As if his central role in determining the outcome of cases was not
sufficiently shocking, the OCDA and local law enforcement have sought to protect
his credibility by not investigating his murders. They have done this even though
Moriel apparently has been ready and willing to discuss them and could present
details that solve cold cases, free those wrongfully charged for the same crimes, and
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brings closure to victims families;
6) The public, victims and their supporters, as well as defendants and their
supporters, can no longer reasonably trust the integrity of the OCDA and local law
enforcement to pursue investigations and prosecutions in good faith;
7) The OCDA has caused significant damage to its reputation by having instructed
on best practices for an informant program and then helping to create one that is
completely inconsistent with those practices. Assistant DA John Anderson and
Westminster Police Department Detective William Nye wrote the section on
informants for the U.S. Department of Justices Gang Prosecution Manual, which
detailed the importance of documenting direction and performance, as well as
adherence to Brady. The decision by the OCDA to instead create a program that is
dedicated to concealment and violating both Massiah and Brady would
appropriately devastate the reputation of the OCDA among local, state, and federal
prosecutorial agencies.
Additional evidence of the OCDAs inability to examine this case impartially
emerged in the last ten days. On February 7, 2014, Wagner requested from this Court a
three week sealing period for the Motion to Dismiss to purportedly analyze the motion for
possible redactions and additional sealing requests. His request was seemingly based upon
the need to work through a heavily detailed 500 page motion (and many thousands of
pages of exhibits), which he only had for one week at the time of the request. But after
obtaining a temporary order from this Court to seal the Motion to Dismiss, Wagner decided
to give strongly worded statements to the media about the allegations contained within the
Motion to Dismiss. The prosecutor chose to make this statement at a moment when he
knew, in light of this Courts sealing order, that the public and most media organizations
would be unable to access the motion to consider whether his response was accurate. But
even more surprising was what he said:
//
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We think much of whats contained in it is untrue and unfounded, said Assistant District Attorney Dan Wagner. There are over-the-top, scurrilous allegations in there Unfortunately, these types of allegations are becoming sort of commonplace ... for defense attorneys its part of their normal litigation strategy.
(Arevalo, Dekraais Lawyer Alleges Prosecution Misconduct, Los Alamitos-Seal Beach Patch (Feb. 8, 2014), attached herein as Exhibit A12, emphasis added.)
After the Motion was unsealed on February 14, 2014, Wagner told the Orange
County Register that the motion is filled with untruths. (Hartley and Jolly, Seal Beach
slayings: Allegations of D.A., Sheriff misconduct, O.C. Register (Feb. 14, 2014), attached
herein as Exhibit A13.) Wagner unintentionally, but quite compellingly, corroborated that
his office is unable to impartially participate in this case: the OCDAs willingness and
ability to impartially assess the accuracy of the allegations is disproven when the
findings of a purported investigation are announced almost from the outset and well
before the investigation has been completed. Wagners comments also signal to each
and every attorney from his office who might replace him and Simmons what is expected:
ferocious advocacy showing that the defense has made scurrilous allegations and that
most of what is found within the Motion to Dismiss is untrue and unfounded.
This message was also advanced as recently as February 14, 2014, a group of
prosecutors converged on another courtroom to see an attorney from the homicide unit,
Senior Deputy DA Matthew Murphy, assail Sanders honesty in a hearing on a case with
related informant issues, People v. Wozniak. As discussed beginning at page 82, that
prosecutor suggested that he would magnanimously refrain from pursuing perjury charges
against Sandersknowing the claim of perjury was made in bad faith and was intended to
intimidate counsel for Dekraai and Wozniak, who had just two weeks earlier made serious
allegations in the Motion to Dismiss against his fellow prosecutors.
These efforts speak squarely to why Dekraai cannot receive a fair trial from the
OCDA. With the words of Wagner and Murphy, a veteran attorney whom he supervises,
ringing in the ears of fellow prosecutors, it is illogical to believe that any member of the
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OCDA would proceed impartially with this case and turn over helpful evidence to Dekraai,
thereby showing that the prosecution team held back evidence relevant and helpful to the
defense in the penalty phase in this case. To do so would devastate the credibility of
Wagner, and offer evidence that he and his team members were deceitful. Additionally,
acknowledgement of wrongdoing would also bring significant ramifications personally and
professionally to the identified individuals, support the sanction requested in the Motion to
Dismiss, and damage the credibility of the OCDA as a prosecutorial agency.
ISSUES PRESENTED
I. WHETHER THE PROSECUTION'S MISCONDUCT HAS CREATED A CONFLICT OF INTEREST WHICH DISQUALIFIES THE ORANGE COUNTY DISTRICT ATTORNEY FROM PROSECUTING THIS CASE?
POINTS AND AUTHORITIES
Prior to the 1980 enactment of Penal Code section9 1424, a district attorney could be
disqualified when a judge determined the prosecution has a conflict of interest which might
prejudice the prosecution against the accused "and thereby affect, or appear to affect," the
prosecution's ability to impartially perform the discretionary functions of a prosecutor.
(People v. Superior Court (Greer) (1977) 19 Cal.3d 255, 269.)
Section 1424 was the Legislature's response to the Greer decision. (People v. Lopez
(1984) 155 Cal.App.3d 813, 824.) It requires recusal upon a showing "that a conflict of
interest exists that would render it unlikely that the defendant would receive a fair trial."
(Pen. Code, 1424, subd. (a).) The California Supreme Court discussed the effect section
1424 had on its holding in Greer in People v. Conner (1983) 34 Cal.3d 141. The court
recognized that section 1424 contained a different recusal standard than Greer, but
nonetheless held that the statute contemplates both "actual" and "apparent" conflicts. (Id.
at p. 147.) However, the distinction between an actual and apparent conflict is "less
crucial" under the statute because of section 1424's additional requirement that the conflict
9 All further section references are to the Penal Code unless otherwise noted.
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"render it unlikely that defendant will receive a fair trial unless recusal is ordered." (Ibid.)
Section 1424 creates a two-part test to determine whether the prosecution should be
recused: (1) Whether a conflict exists; and (2) whether the conflict renders it unlikely the
accused will receive a fair trial. (Haraguchi v. Superior Court (2008) 43 Cal.4th 706, 713.)
The prosecution's misconduct in this case and in the prior cases involving the use of the
custodial informant program has created a conflict of interest, and that conflict renders it
unlikely Dekraai will receive a fair trial. Accordingly, the OCDA should be recused from
this case.
As noted, the first part of the test under section 1424 requires this Court to
determine whether the OCDA has a conflict of interest in prosecuting this case. A conflict
exists within the meaning of section 1424 "whenever the circumstances of a case evidence
a reasonable possibility that the DA's office may not exercise its discretionary function in
an evenhanded manner." (People v. Conner, supra, 34 Cal.3d at p. 148.) There is no need
to determine whether the conflict is actual or just apparent; both satisfy the conflict
requirement. (People v. Eubanks (1996) 14 Cal.4th 580, 591-592.) Further, whether a
district attorney has a conflict is not limited to situations where the prosecution has a
personal financial or emotional interest in the prosecution. (Id. at p. 595.) To the contrary,
the prosecution's impartiality can be impaired by institutional interests. (Ibid.) This first
part of the test asks only "whether a 'reasonable possibility' of less than impartial treatment
exists ...." (Haraguchi v. Superior Court, supra, 43 Cal.4th at p. 713.)
The second part of the test requires a determination whether the conflict renders it
unlikely the defendant will receive a fair trial. (Haraguchi v. Superior Court, supra, 43
Cal.4th at p. 713.) This question is answered affirmatively if "it is more likely than not the
defendant will be treated unfairly during some portion of the criminal proceedings." (Ibid.)
Although section 1424 focuses on whether the accused will receive a "fair trial," the need
for "prosecutorial impartiality extends to all portions of the proceedings, not only to the
trial." (People v. Eubanks, supra, 14 Cal.4th at p. 593.) The two parts of the test "are to
some extent continuous rather than discrete, as many factors relevant to the overarching
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inquiry may be framed in terms of their effect on the existence of a conflict or its gravity."
(Haraguchi v. Superior Court, supra, 43 Cal.4th at p. 717, fn. 13.)
Section 1424 further provides that after all parties have briefed the issue, the trial
court "shall review the affidavits and determine whether or not an evidentiary hearing is
necessary." (Pen. Code, 1424, subd. (a)(1).) The Court of Appeal recently addressed the
basis on which a trial court should make this determination in Spaccia v. Superior Court
(2012) 209 Cal.App.4th 93. Prior to 1999, section 1424 did not provide for an evidentiary
hearing; instead it spoke only of "the hearing on the motion." (Id. at p. 109.) The 1999
amendment to the statute added the language contemplating an evidentiary hearing. (Ibid.)
The court found some guidance in the legislative history of the amendment, observing that
as originally introduced the bill prohibited an evidentiary hearing unless "there are disputed
issues of material fact that cannot be resolved through the use of affidavits. [Citation.]"
(Ibid.) Additionally, a committee report for the bill noted opponents of that limiting
language argued evidentiary hearings were valuable on the issue of disqualification and
thus should be more freely available. (Id. at p. 110.) By comparing the original language
of the bill to what was ultimately enacted, the court determined the following:
As the language limiting hearings was ultimately rejected in favor of language leaving the issue of whether to hold an evidentiary hearing to the trial court's discretion, we can infer that the Legislature expressly chose not to limit evidentiary hearings to only those situations in which there exist disputed issues of material fact which could not be resolved on affidavits alone.
(Spaccia v. Superior Court, supra, 209 Cal.App.4th at pp. 110-111, fn. omitted.)
The court thus held it is clear that trial courts have the discretion to determine, after
reviewing the affidavits submitted by the parties, whether an evidentiary hearing on a
section 1424 motion is necessary. (Spaccia v. Superior Court, supra, 209 Cal.App.4th at p.
111.) The court further held that an evidentiary hearing may be deemed "necessary" even
if the movant has not established the existence of disputed issues of material fact which
cannot be resolved solely through the use of the affidavits. (Ibid.) On review, a trial court
will have abused its discretion in denying an evidentiary hearing if the defendant makes a
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prima facie showing for recusal. (Ibid.) "A 'prima facie' showing refers to those facts
which will sustain a favorable decision if the evidence submitted in support of the
allegations by the petitioner is credited. [Citation.]" (Ibid.) In so holding, the court
analogized the necessary showing in a recusal motion with the showing a parent must make
to obtain a hearing on the modification of a dependency order under Welfare and
Institutions Code section 388, and the showing an inmate seeking habeas relief must make
to obtain an order to show cause. (Ibid.)
In the instant case, Dekraai has certainly made a prima facie case that recusal is
required, and thus this Court should conduct an evidentiary hearing on the issue.
FACTS
OCDAs Understanding of Proper Administration of Confidential Informant
Program
The leadership of the OCDA is undoubtedly well-versed on the prohibition against
eliciting statements from charged and represented defendants under Massiah v. United
States (1964) 377 US 201, and appreciative of their legal and ethical obligations with
regard to discovery.
The OCDAs recognition of the vital importance of ensuring that an informant
program operating within the local jails (custodial informant program) honors these legal
principles and protects the interests of justice, both for the prosecution and the defense, is
documented. The former supervisor of the OCDAs Tri-Agency Resource/Gang
Enforcement Team (TARGET) Unit, Assistant DA John Anderson, and Westminster
Police Department Detective Mark Nye were given the significant honor and responsibility
of writing a chapter in the U.S. Department of Justices Gang Prosecution Manual, which
included a section that articulated the fundamental principles of an ethical and successful
informant program:
//
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Police and prosecutors should carefully log all benefits conferred on a CI during an investigation and disclose the benefits before trial to the defense. Such benefits are viewed legally as motivation for a CI to favor law enforcement while testifying. Great care must also be given to disclosing to the defense any exculpatory Brady material that might be discovered as a result of the CIs cooperation, Brady v. Maryland, 373 U.S. 83 (1963). [] CIs should only be used after a written agreement is signed that fully discloses the agreement between the CI and the police (in conjunction with the prosecution). Police should also maintain a log of all supervision of and direction given to a CI and document the performance of the CI, both good and bad. It is critical to present the CI in the most accurate light possible to avoid the appearance that the police and prosecution are hiding things.
(Exhibit F, p. 21.)
As will be shown, Orange Countys custodial informant program not only fails to
incorporate the policies of good government articulated above, but has put into place
practices to ensure that governmental agencies violate the law in secrecy and with
impunity.
Inmate F.s Interjection into People v. Dekraai
Soon after his arrest for the murder of eight people, Dekraai was moved from a tank
in the Orange County Jail (OCJ) where was housed into the same one where Inmate F.
was located. Dekraai was actually moved into the exact cell that Inmate F. had been
occupying only hours earlier. Just before Dekraais arrival in Mod L Tank 17, though,
Inmate F. moved into the adjoining cell. (Exhibit A8, pp. 73-75, 78-79.) Inmate F.
befriended Dekraai and ultimately asked him about the crime. (Exhibit A8, p. 93-95.)
Their conversations were memorialized in detailed notes by Inmate F. that were turned
over to Special Handling Deputy Ben Garcia. (Exhibit A8, pp. 84-85, 87-88.) Prosecutors
and members of law enforcement conducted a recorded interview of Inmate F. and shortly
thereafter placed a recording device in Dekraais cell. (Exhibit A8, pp. 89-98.) The device
captured Dekraais discussions of the crime, his mental state, his meetings with his former
counsel, as well as his conversations with jail mental health staff. The device also recorded
Inmate F.s persistent efforts to build what Dekraai perceived was a growing friendship
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between the two men. (Exhibit A8, pp. 98-105.)
In the prosecution teams single recorded interview of Inmate F., which took place
prior to the introduction of the recording device into Dekraais jail cell, Inmate F.
explained how he found himself speaking to Dekraai. Inmate F. said that he asked Dekraai
why the crime occurred, and then assured him that he really wanted to know what
happened. Dekraai purportedly responded by opening up about his life and the incident.
After listening to Dekraai, Inmate F. said that his conscience propelled him to contact law
enforcement because he believed Dekraai needed to receive the death penalty for his
actions and what he expressed about the crime. (Exhibit A8, pp. 91-97.) Neither the
recorded interview nor the subsequent reports indicated that Inmate F. was a custodial
informant, nor did they explain how Inmate F. and Dekraai came to be housed in adjoining
cells. (Exhibit A8, pp. 89-98, 113-114.)
It appeared that the prosecution had been the recipient of extraordinarily good
luck. The inmate housed closest to Dekraai was a good listener, a great note taker, and
someone so selfless that he wanted to assist the OCDA and local law enforcement without
wishing for anything in return. OCDA Investigator Ericksons subsequently written report
confirmed this picture of Inmate F. (Exhibit A8, p. 114.) The prosecution promised
nothing in return for his assistance, which was perfect for Inmate F. because he wanted
nothing. (Exhibit A8, pp. 90-92.)
Although Inmate F. told the prosecution team he wanted Dekraai to get the death
penalty, the recorded conversations presented a vastly different picture of his feelings
toward Dekraai. Inmate F. appeared to express genuine affection for Dekraai, calling him
brother, offering him food and even guidance to make his life in custody easier. He
inquired about Dekraais well-being and his meetings with counsel. (Exhibit A8, pp. 98-
105.) Per Inmate F.s notes, when he observed Dekraai appearing despondent with his
head in his hands, he asked, Whats up? Dekraai began speaking about his life and the
crime again. (Exhibit A8, pp. 105-106.)
The prosecution did not disclose any evidence related to Inmate F.s contact with
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Dekraai until three months after the recording device was removed from Dekraais cell.
During that window in time, Dekraais private counsel asked to be relieved and was
replaced by two attorneys from the Orange County Public Defenders Office. (Exhibit A8,
p. 3.) By happenstance, Sanders was serving as counsel for another defendant, Daniel
Wozniak, a special circumstances murder case in which Inmate F. had also elicited
statements. (Exhibit A8, pp. 26-30.) An entry within court minutes also showed that
Inmate F. had been transported to testify in a federal case. (Exhibit A8, p. 116.) It was
becoming increasingly clear that the prosecution had been far from transparent in its
presentation of Inmate F. However, when defense counsel requested more information
about Inmate F.s criminal and informant background, the prosecution refused. (Exhibit
A8, p. 2-4.)
Nonetheless, all was still proceeding smoothly for the Dekraai prosecution team
until January 25, 2013. That was the date scheduled for the hearing on Dekraais Motion
to Compel Discovery. Wagner argued, in writing and orally, against disclosure of any
information related to Inmate F. In his responsive brief and declaration, Wagner attempted
to convince the Court not to order discovery. He conceded and agreed to stipulate that the
first prong of a Massiah violation had been met during the time the recording device was
placed in the cell. (Exhibit A8, pp. 115-125.) Wagner declared that Inmate F. was (1)
acting as a government agent, i.e., under the direction of the government pursuant to a
preexisting arrangement, with the expectation of some resulting benefit or advantage
(Exhibit D, pp. 6-7, (citing In re Neely (1996) 6 Cal. 4th 901, 915).) However, elsewhere
in the same Opposition and in his attached declaration filed under penalty of perjury,
Wagner stated that Inmate F. never expected nor wanted a benefit for his assistance. He
wrote, The prosecution team told Inmate F. that it would not be giving Inmate F. any
consideration or leniency for his efforts. Inmate F. said that he was not looking for any
consideration, but that due to the seriousness of the case, he believed the prosecution
should hear what defendant had told him. (Exhibit D, pp. 2, 16.)
Wagner made another statement in his declaration that seemed equally suspicious
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though the deception surrounding it would not become clear until September of 2013. He
wrote the following: OCDA does not anticipate nor intend to make any request or
recommendation for leniency at sentencing as a result of Inmate F.s involvement in the
present case and that the prosecution would give a fact-based appraisal of the value to
the case, but only [i]f summoned. (Exhibit D, pp. 3, 17.) As will be discussed, neither
the Court nor the defense could have known that Wagner and his team were hiding a
memorandum to Petersenconcealed for nearly two yearsthat called into question
the veracity of Wagners declaration and exposed just how far the prosecution would
go to defeat the discovery motion and obtain a death verdict. (Exhibit A8, pp. 107-
111.)
Despite the prosecution's efforts to keep the defense from learning more about
Inmate F., this Court ordered compliance with the informal discovery request made many
months earlier. The provided discovery related to Inmate F. consists of approximately
5,000 pages and 1,000 hours of recordings. (Exhibit A8, p. 4.)
Defendants understanding of the misconduct committed by the Dekraai prosecution
team detailed in this motion and the Motion to Dismiss first emerged from a study of
Inmate F.s notes found in OCSDs Confidential Informant (CI) files. However, notes
written by a second informant named Oscar Moriel, provided perhaps the greatest insights
about a discovery shell game used to hide the secrets of a custodial informant program.
(Exhibit A8, pp. 146-270.)
As will be shown, the OCDA, the OCSD, and local law enforcement have exploited
the lack of transparency inherent in an investigative program run within the jails. This has
allowed prosecution teams (the OCDA and law enforcement agencies that provide
investigative support) to gather evidence, hide the circumstances surrounding the
contact between informants and targets, and introduce incriminating statements
regardless of the legality of how the statements were received.
Inmate F.s Rise to Informant Status and Motivations for His Assistance
The Court-ordered discovery has helped illuminate what prompted the prosecutions
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aggressive efforts to conceal Inmate F.s background. The responsive items included
reports memorializing Inmate F.s informant history, his criminal background, as well as
prosecution discovery in nine Orange County cases in which Inmate F. was referenced.
(Exhibit A8, pp. 7-34.)
The discovery revealed that Inmate F.s informant history appears to have begun
disastrously 14 years ago, when he sought consideration on his first felony case. An
Anaheim Police Department detective submitted an entry in the OCDAs CI file for Inmate
F., which states the following: [Inmate F.] WAS TERMINATED AS A C.I. DO NOT
USE AS A C.I. (Exhibit H, p. 5760.) As will be seen from an examination of his
criminal background, Inmate F.s response to nearly all of his arrests was to proclaim his
innocence and shift the blame to the true wrongdoer. Therefore, it is not surprising that
despite his initial failure at informant work, he was drawn to return to a job that values
deception. In 2001, he asked if he could receive consideration on another felony case by
providing information about other crimes. The Garden Grove Police Department either
missed or ignored the warning from the Anaheim detective and agreed. (Exhibit A8, p. 9.)
In 2009 and 2010, Inmate F. found a new and even more compelling set of reasons
to re-dedicate himself to informant work. In 2009, he was convicted in one of his two
Third Strike cases prosecuted by Petersen. (Inmate F. was also charged in 2006 with a
second Third Strike case. To date, he has not been sentenced on either of his cases.)
During the trial, Inmate F. committed perjury by testifying that he had left behind his gang
and the gang life several years earlier. (Exhibit A8, pp. 9-12.) In fact, he not only had
remained in his street gang, but had risen to a leadership position within the Mexican
Mafia. (Exhibit A8, p. 18.) At trial, Petersen did not mention Inmate F.s involvement in
the Mexican Mafia, likely because Inmate F. was then a key target in an ongoing Federal
RICO investigation related to his Mexican Mafia activities. (Exhibit A8, pp. 17-24.)
Nonetheless, Petersen attacked Inmate F. for his dishonesty during closing argument.
(Exhibit A8, pp. 9-12.)
After his conviction, Petersen wrote a sentencing brief asking that Inmate F. receive
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a life sentence. (Exhibit A8, p. 12.) Because Petersen did not mention his Mexican Mafia
involvement, Inmate F. believed the government was unaware of the crimes he was
committing in the jail, including conspiracies to kill fellow inmates. As a result, Inmate F.
unabashedly pleaded with the court to reject Petersens sentencing request, asking that the
court and the probation department recognize him as a changed person who deserved a
second chance. (Exhibit A8, pp. 12-17.)
For Inmate F., though, his future as an inmate was growing more bleak. There were
increasing signs in 2010 that his ruling mesa was being challenged and his opponents
were gaining ground. (Exhibit A8, pp. 24-25.) Yet, in an ironic twist, Inmate F.s crimes
and his deceitfulness saved him from life in prison while a target of the Mexican Mafia.
Inmate F.s access to one of the organizations ruling factions within the jail made him a
prized commodity for investigators working on Operation Black Flag and the prosecutor on
the related cases, Petersen. The prosecution team also realized that Inmate F.s own
predicaments would motivate him to supply a prolific quantity of information. (Exhibit
A8, pp. 30-31.) Therefore, Petersen and his team decided to give Inmate F. a
transformative makeover: deceptive and violent inmate to truth-telling and socially
responsible informant.
Fully energized, Inmate F. went to work. Special Handling deputies have
acknowledged having numerous meetings with Inmate F. in the year that followed.
(Exhibit A8, pp. 30-32.) However, the Court-ordered discovery included less than a
handful of law enforcement reports. (Exhibit A8, p. 34.) Nonetheless, Inmate F.s efforts
and the secret operations of the custodial informant program have been gradually revealed
through a study of selected passages from the 133 pages of Inmate F.s handwritten notes
included in the OCSDs CI file. Inmate F. elicited dozens of statements related to Mexican
Mafia activities. (Exhibit A8, p. 30-34.) However, his work extended beyond that subject
matter. Discovery obtained pursuant to the Court order shows that Inmate F. obtained
statements from at least three different charged defendants, in addition to Dekraai, which
related to murder or attempted murder allegations. (Exhibit A8, pp. 26-30, 55-59, 128-
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132.)
The Hidden Informant Assistance Memorandum
As discussed previously, Wagner wrote in his declaration in support of the
prosecutions Opposition to the discovery motion that the OCDA does not anticipate
nor intend to make any request or recommendation for leniency at sentencing as a result of
Inmate F.s involvement in the present case and that the prosecution would give a fact-
based appraisal of the value of the case, but only [i]f summoned.
However, in November 2011, just one month after interviewing Inmate F., OCDA
Investigator Erickson sent a memorandum to Petersen expressing the OCDAs actual plans
for Inmate F.s cases. The memo was certainly either penned by Wagner or sent at his
direction. For reasons Wagner will have to explain, it was withheld from the defense until
September 26, 2013. (Exhibit A8, pp. 107-109.) In contrast to what Wagner stated in his
declaration, the memo was intended to ensure that Inmate F. would receive consideration
for his valuable efforts. Erickson wrote:
In summary, Inmate F. provided facts and intelligence about the events of the day of October 12, 2011, that only Dekraai could have known. Those facts and intelligence will likely greatly enhance the prosecution of Dekraai, especially in the event there is an insanity plea entered by Dekraai. Following Inmate F.s interview, a covert investigation conducted with the jail facility further established the validity of the information provided by Inmate F. Inmate F. may eventually be called as a witness in the case against Scott Dekraai. [] As the prosecutor handling Inmate F.s case, this memorandum is being directed to you for your consideration and information only. I respectfully request that you keep Inmate F.s name in [sic] information, as it relates to the Dekraai case, confidential. Nothing about Inmate F. or his statements regarding the Dekraai case have been discovered to the defense.
(Exhibit J, emphasis added.) The concealment of this memo was a stunning Brady violation by a leader within
the OCDA. The memo was directly inconsistent with Wagners representations in his
declaration and the Opposition to the Motion to Compel Discovery. If Wagner was lying
to the Court when he wrote that the OCDA does not anticipate nor intend to make any
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request or recommendation for leniency based upon Inmate F.s assistance in Dekraai, the
legal and ethical implications are obvious. Assuming arguendo he was not lying, the
ethical implications are equally serious and provoke numerous questions. For example, did
Wagner tell Petersen to disregard the November memo and to instead withhold
"consideration"? Did he give this command even though he believed "consideration" was
deserved based upon Inmate F.s valuable assistance? Did he tell Petersen why he no
longer wanted Inmate F. to have "consideration" for his work on Dekraai?
The most obvious reason that Wagner would have withheld benefits is a terribly
troubling and unethical one: he and others had already conspired in their interview of
Inmate F. to hide his informant status. (Exhibit A8, pp. 90-93.) The team believed that
their false presentation of Inmate F. was enhanced by suggesting he would receive nothing
in return. (Exhibit A8, pp. 90-93.) Erickson reiterated that point in his report. (Exhibit
A8, pp. 107-109.) Wagner wanted to be consistent on this issue in his representations to
the Court. (Exhibit A8, pp. 117-120.) Wagner could tell the truthInmate F. would not
be receiving a benefit from the OCDA for his assistance in Dekraaias long as he
instructed Petersen to no longer follow the request that Inmate F. be given consideration in
the November 2011 memo.
Petersen has as many questions to answer about the memo as Wagner. For example,
was Petersen told at some point after receiving the memo to give Inmate F. consideration
for his work on People v. Dekraai, but not to acknowledge the connection to this case in
any discussions with the court? What was his response to whatever direction came from
Wagner or another member of the Dekraai prosecution team?
The memo is also significant because it corroborates that shortly after their
interview of Inmate F., the prosecution team began taking steps to hide his informant work
in the instant matter. Toward that end, the memo instructed Petersen not to disclose to
anyone Inmate F.s assistance in eliciting statements from Dekraainoting that the
prosecution had not given Dekraai the evidence obtained with the assistance of Inmate F.
(Exhibit A8, pp. 107-109.)
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Wagner knew that Inmate F. was working as an informant in other cases prosecuted
by Petersen, and that Inmate F.s effor