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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.
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 firstname.lastname@example.org.