The Orange County District Attorney’s Office has dropped murder charges against another defendant after allegations that prosecutors improperly withheld evidence gleaned from a network of jailhouse informants.
On Sept. 22, prosecutors dismissed charges of attempted murder and solicitation of murder against 49-year-old Joseph Martin Govey, who has a prior criminal history. Lesser charges -- including possessing counterfeit money and a felon with a firearm -- remain.
Govey's case marks the third time in three months that District Attorney Tony Rackauckas has chosen to drop murder charges rather than challenge defense attorneys' claims that members of his team behaved unethically and violated evidentiary law with the informants network.
The network was first revealed earlier this year during an unprecedented hearing in the case of convicted mass murderer Scott Evans Dekraai.
Govey's attorney, Renee Garcia, said the dismissal of the charges appears to be designed to hide informant evidence from her and other defense attorneys involved in other cases.
“It is part of a pattern in the District Attorney’s Office, whereby they are being unethical by not complying with the constitutionally mandated evidence discovery requirements,” said Garcia.
“What is very disturbing is that the whole district attorney management teams knows about this. They are behaving unethically. How corrupt can the office be?”
Susan Kang Schroeder -- chief of staff for Rackauckas -- said in an email: “It is the official policy of the Orange County District Attorney not to respond to inquiries from the Voice of OC,” citing past disagreements over articles.
In addition to Govey's case, Rackauckas on Sept. 23 dismissed a second-degree murder charge against Isaac John Palacios, who also was released on parole that day after pleading guilty to a second murder. And in June prosecutors agreed to vacate the conviction and life sentence of Leonel Santiago Vega, who remains in county jail as his attorneys fight a planned new trial.
The DA's actions in the Govey case can be traced back to a June order by Superior Court Judge Thomas M. Goethals that reports and records involving multiple, long-time jailhouse informants be disclosed.
In early August, Goethals ruled in the Dekraai case that prosecutors engaged in misconduct by withholding evidence. But he did not grant requests by Dekraai's public defenders that the DA's office be recused from the case and the death penalty be removed from consideration.
Then on Aug. 29 in the Govey case, according to attorneys and records, Goethals learned that despite his ruling in the Dekraai case, the records sought by Garcia hadn’t all been turned over as ordered. The judge had pointed words for Beth Costello, the deputy district attorney prosecuting Govey. He ordered the parties back on Sept. 22.
But at the Sept. 22 hearing in Superior Court in Santa Ana, records show Costello disclosed that the attempted murder related charges were being dismissed, so all the informant records sought didn’t have to be provided.
Costello also claimed at the hearing she hadn’t reviewed the informant records, Garcia said, which the defense attorney called an additional evidentiary ethical violation.
“For years, prosecutors said they couldn’t find the informant records or they didn’t exist,” said Garcia. “Then they come back and dismiss the most serious charges instead of producing the records. What are they hiding?”
There are court records showing the four informants in the Govey case are involved in multiple other prosecutions, where the evidence also should be disclosed to defense attorneys, Garcia noted.
“If the other cases are given this information, it can open a can of worms, they don’t want to open,” said Garcia, referring to the possibility that the dispute over these disclosures could produce new evidentiary hearings like the one in Dekraai.
In June, Dekraai pleaded guilty to eight counts of murder for shooting his wife and seven others in 2011 in a Seal Beach beauty salon in Orange County’s largest mass killing. He has long agreed to plead to life without possibility of parole.
Dekraai's lead public defender, Scott Sanders, says he will continue his fight to save his client from the death penalty by filing a court motion to try to reopen the evidentiary hearing in his trial -- seeking a host of records about prosecutors’ use of informants, including some Garcia sought in the Govey case.
And Garcia says she is continuing to pursue the informant records, with the next hearing set for Oct. 31.
Garcia notes the Govey case and others show that prosecutors are letting acknowledged or accused killers out of jail, while defendants facing lesser charges remain incarcerated with high bail for years.
“That is really disturbing to me,” she said.
Govey’s bail has been $1 million, records say, but a reduction and release is expected to be sought.
The Govey attempted murderer prosecution arose when he was indicted in 2012 with allegedly trying to solicit someone in 2011 to murder an informant associated with his counterfeit charge. The case was based on informants’ testimony, attorneys say. Govey had pleaded not guilty to the charge, disputing the informants.
Prosecutors have alleged that Govey was a member of the local Aryan Brotherhood band -- known as Public Enemy Number 1 -- but Garcia denies her client is; because the Aryan Brotherhood has at least three times attempted to have him killed.
Twice in California prisons Govey has been stabbed, Garcia said, and he was shot at once when he was free. Govey is on a “permanent kill list” because of some prison political dispute years ago with the Aryan Brotherhood, Garcia said.
As an example of Orange County prosecutors’ irregular tactics, Garcia said, one of the inmates who attempted to kill Govey years ago was just released from Orange County jail after serving as an informant in numerous other cases.
That former inmate, Jason Lee Fenstermacher, a member of the Aryan Brotherhood, was unsuccessful when he couldn’t jab a plastic utensil into Govey’s head, Garcia said, citing a 2012 court record where Fenstermacher acknowledged the attack.
After about three years in Orange County jail, Fenstermacher was released on Aug. 1, court records say. Fenstermacher could not be reached for comment, and his former attorney, Glenn K. Osajima, declined comment.
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.