Public defenders for accused mass murderer Scott Evans Dekraai won a key ruling in Orange County Superior Court Tuesday, which permitted a rare window into how the district attorney's office uses jailhouse informants.
One of the informants, Fernando Perez, took the stand today and submitted to questioning by the public defenders, who allege that county prosecutors have created an intelligence-gathering operation inside the jails that disregards defendants' constitutional rights.
The public defenders are asking Superior Court Judge Thomas M. Goethals to remove the DA's office from the case and rule that Dekraai, who has admitted to the 2011 murders of eight people at a Seal Beach hair salon, not face the death penalty.
At the outset of Tuesday's hearing, county prosecutors, with the support of the state attorney general’s office, argued that no special hearing should be held to consider their removal from the case. Goethals ruled for Dekraai’s attorneys.
But Goethals found that voluminous law enforcement records in documents filed by the public defenders raised sufficient questions to begin the evidentiary hearing, which went all day and will continue intermittently for several weeks.
Scott Sanders, Dekraai’s lead attorney, has alleged in nearly 600 pages of motions that a secret network of informants in county jails gathered information on inmates such as Dekraai and wasn’t properly disclosed to multiple defendants.
The alleged actions were so widespread the entire district attorney’s office is compromised, justifying such a rare recusal, public defenders said.
At one point, Goethals said the essence of what the defense is alleging is “a widespread criminal conspiracy involving suborning perjury and obstruction of justice."
Virtually the entire day was taken up by Sanders’ questioning of Perez, who surreptitiously gathered information from Dekraai in the Santa Ana Jail. The testimony by Perez, once a prominent member of the Mexican Mafia from Santa Ana, will continue at least through Wednesday.
Then public defenders plan to call to the witness stand nine county prosecutors and law enforcement personnel for testimony that is expected to last all of next week.
Those slated for questioning include: Dan Wagner, the deputy district attorney who heads the homicide section and is the lead prosecutor of Dekraai; Scott Simmons, co-prosecutor of Dekraai; and Erik Petersen, a deputy district attorney who in 2009 successfully prosecuted Perez for felony gun possession, which because of his prior convictions could have sent him to state prison for 25 years to life.
After that, the evidentiary hearing will adjourn for a week, with public defenders pouring over more records turned over to them Monday by prosecutors. The hearing will resume on April 7, with testimony from Oscar Moriel, an informant who reportedly has a long, violent history with the Mexican Mafia.
Last Friday, in another Mexican Mafia case, Goethals recused Petersen from the trial of three men for allegedly beating up an inmate last year in the county's Theo Lacy jail. Such a recusal is extremely rare.
During four hours of testimony today, defense questioning of Perez produced a seldom-seen, unabridged view of the criminal and incarcerated life of an Orange County gang member.
As a 14-year-old from southeast Santa Ana, Perez testified he was “jumped,” that is, accepted after proving himself, into the 18th Street gang, maintaining gang connections into his mid-20s.
He eventually rose to be a member of the “mesa” or ruling council of the Mexican Mafia band that held violent sway in Orange County jails. The group headed by incarcerated Armando “Mando” Moreno.
As a member of that mesa, Perez acknowledged during testimony, he could identify targets for his Mexican Mafia faction to kill on sight, called the “hard candy” list.
After the morning testimony, Perez was granted use immunity by the DA's office to testify without fear of having his words used against him in any future criminal proceedings.
Under further questioning by Sanders, Perez reluctantly acknowledged committing perjury in the trial for his 2009 conviction by lying about possession of a handgun.
His testimony also revealed that he lied to the judge in the case, including making false accusations about the performance of his attorney at the time and planning to have a witness give bogus evidence.
While such acknowledgements reduce Perez’s credibility as a witness, they also complicate the prosecutor’s use of him as an informant.
It has been five years since Perez was convicted of the offense that could jail him for many years, but he testified he still hasn’t been sentenced.
Perez testified that in 2010 he suddenly chose to reject the Mexican Mafia, offered to become an informant and has done so since.
Despite hard questioning by Sanders, Perez insisted that he serves only as a listener of inmates, not asking questions about their crimes but at times offering advice.
Dekraai's attorneys allege that Perez may have engaged in such questioning of their client, potentially violating his constitutional rights.
But Perez claims that Dekraai and other murderers “just started opening up to me.”
One was Daniel Patrick Wozniak, a community actor facing the death penalty for allegedly committing two murders in 2010; one of which involved him beheading and dismembering a neighbor.
Perez testified that Wozniak expressed surprise at how much the dead man bled when his head was cut off. Perez acknowledged later that he once called Wozniak “a fucking creep” but Tuesday testified that he “was like family."
Sanders also represents Wozniak, whose trial is on the horizon, but it also may be delayed by similar questions raised by defense attorneys in the Dekraai case.
Perez insisted under repeated questioning that prosecutors have offered him no deals for his informant work and any testimony.
But Perez revealed during the hearing that Wagner, Petersen and the two sheriff’s deputies who are his “handlers” met with him at the Orange County Courthouse in Santa Ana Monday, when, he testified, they told him, “All we wants is the truth.”
He added that Petersen again visited him for a few seconds early Tuesday before the hearing.
Clarification: Due to an editing error, a previous version of this story incorrectly indicated that Judge Thomas Goethals removed county prosecutors from the Scott Evans Dekraai case. Also, an editor misstated Dekraai's last name. We regret the errors.
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 firstname.lastname@example.org.