Judge Testifies DA’s Office Wrong in Case of Withheld Evidence

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During an extraordinary hearing Thursday in Santa Ana, a former federal prosecutor who is now an Orange County Superior Court judge directly disputed crucial previous testimony by a county prosecutor and two law enforcement officers.

The testimony of Judge Terri K. Flynn-Peister came during an unprecedented evidentiary hearing in the mass murder trial of Scott Evans Dekraai, whose public defenders are alleging a pattern of misuse of informants and violations of defendants’ constitutional rights.

Dekraai pleaded guilty in May to killing eight people including his wife in 2011 at a Seal Beach salon.

During earlier sessions of the four-month hearing before Superior Court Judge Thomas M. Goethals, a county deputy district attorney and law enforcement officers testified Flynn-Peister blocked helpful evidence from being provided to a defendant in a separate murder case.

At the time, Flynn-Peister was an assistant U.S. attorney leading federal efforts to prosecute Orange County gangs. She was on a task force that included county prosecutors, federal agents and law enforcement officers.

Dekraai’s lead public defender, Scott Sanders, previously had called as witnesses Deputy District Attorney Erik S. Petersen; sheriff’s deputy Seth Tunstall; and Gonzalo Gallardo, a Santa Ana police detective who retired right before the hearing. Sanders was trying to show that jail informants were routinely deployed illegally and then helpful evidence was withheld from defendants.

In testimony, the three men asserted Flynn-Peister blocked disclosure of informant notes, allowing only four of about 300 pages of notes to be released to defendants. This purportedly was done to protect the informant — Oscar Moriel, a long-time cooperating county jail inmate — from being killed for being a turncoat.

Under questioning Thursday by both Sanders, and Goethals, Flynn-Peister emphatically testified “no,” that never happened.

“I would recall if I was asked about a number of pages,” Flynn-Peister said in a rare instance of a sitting Superior Court judge taking the stand in her own jurisdiction.

The unrelated case involved a Mexican Mafia leader, Leonel Santiago Vega, 34, convicted in 2010 of a gang-related murder in Santa Ana.

Coincidentally on Monday, Vega’s conviction and life sentence without parole was vacated in Superior Court. A judge approved a stipulation between Vega’s attorney and the District Attorney’s Office, who agreed helpful informant information had been withheld at the time of Vega’s trial.

Petersen was the prosecutor of Vega, 34, who remains jailed facing a murder charge that could lead to a retrial or a plea bargain.

And just as the Dekraai evidentiary hearing was starting, in a seldom-seen move, Goethals removed Petersen as a prosecutor in another case of gang violence for not disclosing helpful evidence to defendants. At the time, the judge said he didn’t believe Petersen acted maliciously.

Flynn-Peister’s testimony came as the evidentiary hearing is to conclude Monday.

All parties noted it was totally unforeseen that the former federal prosecutor would be testifying, so all were in agreement Goethals didn’t have to recuse himself. Normally, since both Goethals and Flynn-Peister are judges in the same jurisdiction, Goethals would step aside, which would have necessitated the long hearing beginning anew.

The last witness in the hearing, sheriff’s deputy Tunstall, is being recalled to the stand Monday regarding yet another case in which the public defender has asserted helpful informant evidence was withheld from a defendant. Prosecutors deny the allegation.

Public defenders want Goethals to block the death penalty for Dekraai as a remedy for prosecutors illegally withholding informant evidence; and to recuse county prosecutors from pursuing the case, which then would be taken over by the state Attorney General’s Office.

During Thursday’s three-hour hearing, Deputy District Attorney Howard Gundy sought to break down Flynn-Peister’s testimony, repeatedly asking her virtually the same questions.

But Flynn-Peister — who spent a decade prosecuting both Mexican Mafia and Aryan prison gang members — consistently countered the queries.

As he sought to defend his office’s prosecutor, Gundy assumed the role of a defense attorney seeking to impugn a witness.

Sanders had called Flynn-Peister as a witness, under a special circumstance where prior federal prosecutors must adhere to certain material and relevant guidelines in their testimony. The District Attorney’s Office could have subpoenaed her, testimony showed, but did not.

When the public defender was done querying Flynn-Peister, Goethals — as judges sometimes do on important issues — questioned his bench colleague, who was appointed in December 2012 by Governor Jerry Brown. [She currently is on maternity leave.]

Goethals even read from an earlier transcript of Petersen’s testimony, where the prosecutor and law enforcement officers asserted Flynn-Peister limited the pages of notes discovered in the Vega case.

In that testimony, Petersen stated “I’ve now been aware [by Tunstall] of discovery that’s been deliberately withheld from me by” then federal prosecutor Flynn-Peister.

Goethals questioned Flynn-Peister about the testimony, even seeking to gauge the quality of her memory.

While Flynn-Peister noted she couldn’t recall some specifics from years ago, she insisted what Petersen and Tunstall had asserted didn’t occur.

At one point, under questioning by Gundy, she testified that as a federal prosecutor: “I could not interfere or stop material from being turned over to the defense in a state prosecution.”

That response came near the end of deputy district attorney Gundy’s questioning, which sought to challenge her reasoning, raise questions about the veracity of her answers, and her thoroughness as a federal prosecutor.

He repeatedly referred to her as “ma’am.” At one point, he said, “Oh come on,” to her response.

During his questioning, Gundy also was aided by notes handed to him by the two Dekraai prosecutors: Dan Wagner, an assistant district attorney in charge of homicide prosecutions, and Deputy District Attorney Scott Simmons.

At times, Gundy’s questions prompted Flynn-Peister to decline to respond, saying the queries were outside the parameters of the special agreement under which she was testifying. A short recess even was required for her to consult with federal counsel, assistant U.S. attorney Lawrence Kole.

The agreement and its parameters were necessary because, since Flynn-Peister is a former federal prosecutor, federal officials had to approve the areas she could discuss.

Rex Dalton is a San Diego-based journalist who has worked for the San Diego Union-Tribune and the journal Nature. You can reach him directly at rexdalton@aol.com.

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