Prior Murder Adds Another Layer to Wozniak Case

In the coming days, Daniel Patrick Wozniak is set to stand trial for one of Orange County’s most gruesome murders, the decapitation of a Costa Mesa man and the killing of his college friend.

The case against Wozniak for the 2010 murders of Samuel E. Herr and Juri “Julie” Kibuishi of Irvine has become a legal sequel of sorts to the prosecution of Scott Evans Dekraai, who pleaded guilty to the 2011 shooting of his ex-wife and seven others in a Seal Beach beauty salon.

Scott Sanders — a top county public defender representing both Dekraai and Wozniak — has made alleged constitutional rights violations the focus of his defense in each of the two cases as he works to save his clients from death row.

Sanders is alleging that District Attorney Tony Rackauckas’ prosecution team, along with county sheriff’s deputies, used a network of jail informants to illegally obtain information from the two defendants to win death penalties.

Earlier this year, Superior Court Judge Thomas M. Goethals ruled Rackauckas’ team engaged in misconduct in prosecuting Dekraai — thereby removing the agency from prosecuting his penalty phase trial and handing it over to the state Attorney General’s Office.

But to this point Sanders has not been as successful in the Wozniak case. Courts have denied his requests. Meanwhile, the prosecution claims there were no violations of Wozniak’s rights by the informant used in his case.

As the arguments over the impact of rights violations on the crime and punishment continue, there is a previously undisclosed aspect of the Wozniak case that provides an added perspective:

Eight years before he was murdered, Herr was among defendants accused of a particularly vicious killing in Los Angeles County.

But Herr was acquitted after a 2004 jury trial when a judge excluded highly incriminating evidence in a type of ruling some legal experts consider controversial.

After Herr’s attorney argued there was “outrageous government conduct” in the violation of defendant’s rights, court records show the judge excluded the evidence.

Ironically, it is the same argument Sanders has put forth in both the Dekraai and Wozniak cases, for which he has incurred the wrath of victims’ families.

Among the outspoken critics of Sanders’ tactics is Steve Herr — Samuel’s father from Anaheim Hills — who has exercised victims’ rights to speak to judges at hearings, repeatedly criticizing the defense and the judicial process.

At a Wozniak hearing earlier this month, Steve Herr told Judge John D. Conley that Wozniak’s defense was subverting justice.

“This whole thing of hearings for years and years is reprehensible, appalling,” said the father.

He then requested that Sanders be removed as defense attorney. While noting he couldn’t respond to the father’s request, the judge said such an action could delay a trial for years.

In a recent interview, Steve Herr said he saw the “delays” as a legal tactic, not an assertion of Wozniak’s rights for a fair trial.

“All we are pressing for is a trial,” he said, noting his son got his trial in about two and a half years. “Sanders has had five and a half years to do his research.”

The ‘Brown Familia’ Killing

Flashing back 13 years ago, the Herr family was on another side of the legal bar — doing whatever it took to keep their son from being convicted of murder.

In 2002, then 18-year-old Samuel Herr was accused of taking part, along with 17 other men and women, in the stabbing/beating death of a 19-year-old childhood friend in Canyon Country.

The Herrs hired a star private defense attorney. Alex R. Kessel of Encino.

Today, Steve Herr declined in the interview to discuss specifics of that time.

“He was found not guilty, acquitted by a jury of his peers — they exonerated him,” he said. “We don’t want to dwell on that. My son is in his grave, after being cut to pieces. We are focused on the trial of his murderer.”

Kessel’s court filings describe defendant Samuel Herr as an erstwhile student unable to attend regular high school because of learning challenges, and a regular marijuana smoker.

He hung out with a small group known as the “Brown Familia,” but wasn’t a made gang member.

On the night of Jan. 15, 2002, a Brown Familia member, Victor Flores, a 19-year-old native of Mexico, was shot dead, his body dumped in a river bed.

By the next day, police records say, the Brown Familia began plotting revenge.

They settled on Guatemala native, Byron A. Benito, who they thought was associated with the Flores killing. [Prosecutors say there was no connection between Benito and the Flores’ shooting.]

Herr picked up Benito, drove him to an industrial park, where the Brown Familia assailants awaited, according to court records.

Samuel Herr helped to select the site, witnesses said, noting there were no surveillance cameras in the parking lot behind a gym.

Once Herr arrived with Benito, court records say, the assailants engaged in a “rat pack” attack so furious that some defendants inadvertently stabbed each other.

As the attack ensued, a prosecution cooperating witness, himself a defendant, said Samuel Herr didn’t join in, but he and a couple others faked a fight nearby, apparently as a cover in case Benito survived.

Immediately after Benito’s death, sheriff’s deputies learned he was last seen with Samuel Herr.

In the recent interview, Benito’s younger brother, Adrian Orozco, recalled seeing Samuel Herr speeding away in a car — when the family attempted to ask him about the whereabouts of his brother the morning after his disappearance.

By the night after the murder, deputies had identified Samuel Herr as “a possible suspect,” staking out his home.

When he drove by, saw Los Angeles County Sheriff’s deputies and didn’t stop, deputies tailed him going 37 mph in a 25 mph zone, watched him turn left without making a signal, and then pulled him over.

Later in defense motions, Kessel wrote his client “was driving prudently,” so deputies shouldn’t have stopped him despite the apparent infractions.

The traffic stop was “a pretext” to engage in “a fishing expedition,” Kessel argued in documents, so deputies didn’t have sufficient evidence to later arrest Samuel Herr for Benito’s murder.

After sheriff’s deputies detained Samuel Herr, the defense argued his rights against self-incrimination were violated, his requests for an attorney were ignored, he was deprived of sleep and food, and questioning sessions went for 12 hours.

And during withering interrogation, defense records say, his father and an attorney were waiting outside the station, stalled from providing legal assistance. It was such issues that prompted Kessel to argue the outrageous conduct by law enforcement.

Records of Samuel Herr’s arrest reflect the fine line of law enforcement decisions that eventually led to the exclusion of the incriminating evidence against him.

When Herr’s car was seized, records show, fingerprints, fibers, and ashtray contents were collected, along with photos of other possible evidence.

And during the initial questioning, Herr “made statements which implicated him in the murder of Benito,” according to a Kessel defense motion.

Kessel argued that the forensic evidence and the damaging statements were inadmissible at trial because they were “illegal fruit” of an improper search undertaken without probable cause.

Then nearly two years after Herr’s arrest as he remained jailed, Los Angeles Superior Court Judge Norman P. Tarle agreed, ruling the incriminating evidence and statements should be excluded from the jury trial.

Herr walked free with a handful of other defendants — while the remainder received major or life sentences.

A Surprise Verdict

John Colello — now an assistant head deputy of the hard core gang division, who prosecuted Herr and the other defendants — was stunned at the acquittal, given the strength of the remaining admissible evidence.

“I was very surprised,” said Colello, who noted he only has had two other murder acquittals in years of prosecuting gang members and cop killers.

In a recent interview, Colello added: “Deputies certainly had probable cause based on his statements that he was involved in the murder.”

And Colello noted there was enough other evidence to convict him. “There were eye witnesses, and other physical evidence — all pointing to Herr,” said Colello.” But the system is the system.”

Case law excluding illegally seized evidence evolved to prevent law enforcement from abusing a defendant’s rights to a fair trial.

The exclusionary rule has become one of the most controversial in criminal law — with even some liberal academic attorneys questioning its broadest applications.

Among them is Robert K. Fellmeth, a long-time legal analyst at the University of San Diego School of Law.

“Exclusion of incriminating statements because of police ‘misconduct’ is a problem in my view,” said Fellmeth. If there was coercion or evidence reliability issues, he agreed it should be excluded.

But if the issue centers on a technicality, Fellmeth said, “The better remedy would be civil penalties against the police department involved,” which is better “than the collateral cost of letting a killer go loose.”

Legal authorities say private defenses have long been known to give an advantage to well-off clients.

In the Benito murder, records show other defendants largely were Latino — who were represented by either a public defender or court-appointed, publicly funded counsel. [Herr was listed as Caucasian.]

Fellmeth added it is certainly valid to note “a family with wealth may facilitate an acquittal — while that same family may possibly reverse English and facilitate a conviction [when] the family members shifts from accused to victim.”

“The key variable has to do with the influence of money and hired guns,” Fellmeth said. This “can finance additional expert testimony in some cases that can on occasion make a difference.”

But in the aftermath of Herr’s murder, Anna Alvarez, Adrian Orozco’s fiancee, said: “Money can’t manipulate everyone. The Herr family is going through the same thing [Benito’s] family did.”

About six months after Benito’s murder, Herr was examined by Dr. Kaushal K. Sharma — a Huntington Beach psychiatrist, who for more than 20 years has diagnosed criminal defendants for the courts.

Suicide Risk

Now assistant medical director at USC’s Institute of Psychiatry, Law and Behavioral Science, Sharma wrote in his three-page report Herr was wearing a suicide-prevention suit when examined.

Sharma found Herr had received outpatient psychiatric care since he was 12 years old for bulimia and obsessive/compulsive disorders; but he ceased medication and psychiatric care at 16 years old. Herr also confessed to Sharma of thoughts of harming his parents, whom he also loved, the report states.

Based on the exam, Sharma declared: “The defendant is mentally ill and in need of continued medication and treatment.”

Yet once he was acquitted, Herr was able to join the U.S. Army.

While the Army was widely known for relaxing standards to obtain recruits in the aftermath of the 2003 invasion of Iraq, an attorney familiar with military requirements says waivers likely would have been required for Herr to enlist given his history.

At Riverside National Cemetery where Herr was buried, his gray stone is embossed with: “Afghanistan,” where the private first class served after joining the service in 2006.

U.S. military service has long been known as a route for redemption for those with a wayward youth.

Honorably discharged in 2009, Herr began basic studies at Orange Coast Junior College when he fell in with his apartment building neighbor, Wozniak, whose alleged murder motive was money for his coming wedding.

While in the Army, Herr was a mechanic, who served on front lines, becoming “a decorated combat veteran,” his father said. “He loved to travel; he was thinking of going back into the Army.”

On his gravestone, the Herr family had inscribed: “Till we meet again, our precious son.”

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

  • Jimson

    I do not believe that Sam Herr was a bad person. It sounds like he got mixed in with the wrong crowd when he was young. Daniel Wozniak, on the other hand, is pure evil with no conscience.

  • Andrew Ian Murphy

    I wonder if Mr. Herr was involved in something a little bit more than being a college student? Maybe he ws involved with the old Familia a little bit again and got himself killed?

  • Lauren

    There’s a level of conscience low so low that it creates a vacuum from which no good can come. This article compares the “fishing expedition” against the criminal justice system by Scott Sanders to the “fishing expedition” used by law enforcement against Daniel Wozniak’s victim, Samuel Herr. Herr was acquitted in a prior case that has nothing to do with his murder. Telling the story of that case in a comparison to his murder is pure sensationalism.

    Sanders, in his defense of Wozniak, has made allegations against the OCSD and OCDA that have nothing to do with the Wozniak case. Sanders is forcing trial delays to frustrate prosecution rather than raise a defense. His fishing expedition is for spite and not for justice. The fishing expedition used by law enforcement against Herr back in 2002 was an injustice to Herr. The fishing expedition used by Sanders now is also an injustice to Samuel Herr. Somehow, somewhere, justice must come for this kid and for his fellow victim, Julie Kibuishi.

    • LFOldTimer

      Lauren, perhaps you don’t understand how the criminal justice system works. You see, there are rules that all participants must follow using the US Constitution as the supreme set of guidelines. Now again, you don’t have to believe in the US Constitution if you choose not to. You don’t have to believe in anything. But you have to concur that the US Constitution is the Law of the Land and until that changes those are the guidelines that our criminal courts must obey. Mr. Sanders is defending the US Constitution. We have some pretty conclusive evidence that the US Constitution was violated by those on the other side of the aisle in both the Wozniak and the Dekraai criminal cases, whether you want to recognize that or not. When that happens it throws a monkey wrench into the machinery. So don’t blame Mr. Sanders for playing by the rules and giving his clients the best possible defenses. Blame the ones who threw the monkey wrench. You’ve got it backasswards. Point your finger at the violators. Not at the man who exposed the violations.

      • Lauren

        Rex Dalton has hit a sickening low by saying that if police can use a “fishing expedition” expedition to charge Sam Herr, then Scott Sanders can use a “fishing expedition” to delay the trial against Sam’s killer.

        Scott Sanders is not practicing any sort of constitutional law. He is delaying the Wozniak trial by raising issues unrelated to the brutal murders committed by Daniel Wozniak with the help of his girlfriend Rachel Buffet.

        None of Daniel Wozniak’s rights have ever been violated and Scott Sanders has never provided any facts or anything that can be considered evidence to show that Wozniak’s rights were ever in jeopardy.

        Scott Sanders has resubmitted motions that previous judges have denied. Sanders has also put witnesses lives in jeopardy by submitting private information, like addresses and social security numbers, in a pleading that was accessible by the public for a week.

        Scott Sanders has made many ethical violations in his representation of Wozniak and he should be sanctioned by the various authorities who have the power to sanction him.

        • LFOldTimer

          Wozniak is reportedly willing to accept life w/o the possibility of parole. But the boneheaded egotistic prosecutor won’t settle for anything less than the death penalty in a State where the execution of prisoners has been essentially off the table for years and will likely be eliminated as a means of punishment in California within 5 years. So practically speaking the prosecutor is delaying justice in hopes of getting a little notch in his belt that he can use as a show and tell piece during his Alpha Dog conversations at the office water cooler. to know that the use of confidential informants to And one doesn’t have to be a constitutional lawyer surreptitiously gether information from a defendant after he is charged with a crime and assigned legal counsel is a gross violation of constitutional law. But naturally you don’t want to go there. You only want to trash talk the guy who exposed all the constitutional violations which would still be occurring in the OC jails had he not brought them to light. ha. To those of us who believe in the US Constitution and have even risked our lives in the military to defend it Scott Sanders is a hero. It’s the ones who openly showed disregard and disrespect for the US Constitution by violating its black letter law who are the villians. But then no good deed goes unpunished, does it?

          • LFOldTimer

            Not to mention the prolonged taxpayer expenditures required for this case to go to trial (likely hundreds of thousands or over a million dollars) and then to the death penalty procedures, if convicted (more hundreds of thousands of dollars) and then if Wozniak goes to death row he is assigned a capital case attorney who will bill us for most likely millions of dollars over a protracted number years of DP appeals for an execution that will esentially NEVER HAPPEN in the State of California. All of this could easily be avoided by accepting Wozniak’s plea to life in prison w/o the possibility of parole. It’s my understanding (from what I’ve read) that this offer is still on the table. So Lauren, do you think the responsible thing to do is spend millions more of taxpayer’s legal dollars on Wozniak to condemn him to a fate that will never ever happen? You know all we would be paying for is a little gold plated trophy that the prosecutor could brag to his grand kids about, right? Is that worth millions of dollars to you?

  • Paul Lucas


  • LFOldTimer

    Well, that old expression “What goes around comes around” goes all the way back to the biblical days. And it holds as much truth today as it did back then. Look, I’m not a big fan of defense attorneys and some of their tactics. But I consider Scott Sanders a courageous and honorable man who has done the justice system and the U.S Constitution a huge favor. If not for him the U.S. Constitution would continue to be violated by those who are sworn under oath to uphold it on a daily basis. Now, maybe you don’t believe in the U.S. Constitution. And you have a right not to believe in it, if you so wish. But I do. It’s the equivalent of a referee on the football field. Without referees imagine the dirty underhanded manuevers the players would engage in to win the game? No different in society. Humans have to be forced to act civilized. It’s the nature of man. Sorry, that’s the truth. Scott Sanders is simply a good and decent and fair referee on the field doing his job. And many hate him for it. Even some of those sworn under oath to uphold the U.S. Constitution. Me? Again, in general I’m no big fan of defense attorneys as a group. Never have been. But they play a critical role in our society. With that said, I think the County should build a staute of Mr. Sanders and put it right next to Lady Justice in front of the County Courthouse. Why? Because he was the first one to expose violations of the U.S Constitution that have been going on for decades while many people in sworn positions turned a blind eye. Don’t downplay the significance of his contributions to our justice system. Go ahead and hate him for it if you want. You have that right. But recognize his contributions and his courage. That’s all I ask. Disclaimer: I am not a friend of Scotts and probably wouldn’t recognize him if I passed him on the sidewalk.