Recent Proof of Prosecutorial Misconduct Mirrors OCDA's Bad Old Days - OC Weekly PDF

8/8/2016
RecentProofofProsecutorialMisconductMirrorsOCDA'sBadOldDays|OCWeekly
Recent Proof of Prosecutorial

Misconduct Mirrors OCDA's Bad Old
Days
BY R. SCOTT MOXLEY
WEDNESDAY, MAY 6, 2015 AT 2:02 P.M.
After a Friday night of eating pizza, drinking booze, dancing and smoking
hashish with friends in Laguna Beach, 20-year-old Ginger Lorraine
Fleischli disappeared. Two days later, farm workers discovered Fleischli's
corpse in a sleeping bag buried in an Irvine eld, just 10 miles away. Her
killer used a knife to stab her ve times in the head near her right ear.
DNA analysis also showed she'd had intercourse shortly before her
death.
http://www.ocweekly.com/news/recentproofofprosecutorialmisconductmirrorsocdasbadolddays6477637
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death.
The gruesome, Sept. 12, 1981, crime didn't originally garner much attention outside of Southern
California, but 33 years later, the case still reverberates in courthouses and law schools
throughout the nation. But its notoriety didn't originate from outstanding law-enforcement
work. To win convictions against two men--including the death penalty for one defendant--an
Orange County prosecutor employed tactics abhorrent to critics across the political spectrum.
Inside the Orange County district attorney's ofce (OCDA), however, the cheating didn't prompt
apologies or spark reforms. On the contrary, the prosecutorial villain in the Fleischli case, Mike
Jacobs, became a celebrity among his colleagues, who were awed by his aggressiveness. In one
of his rst acts upon election to DA in 1998, Tony Rackauckas--then a 55-year-old former
prosecutor and superior court judge--rewarded Jacobs with a promotion to his management
team.
* * * * * During a rare cool, drizzling day in late April, Rackauckas hosted the Orange County
Victims' Rights March & Rally in Santa Ana. The DA's annual event, now in its seventh year, has
become a well-choreographed public-relations spectacle for TV news people, with music,
banners, testimonials by a few victims and speeches by politicians eager to align themselves
with law enforcement. At this event, the now-72-year-old Rackauckas hailed his own "40-year
ght" for criminal-justice reform. He declared, "Orange County is and has always been the place
where reform begins."
The statement was an act of deance, but not because of the Fleischli case. An unrelated ethical
dispute prompted Rackauckas and Jacobs to part ways long ago. Yet, this county--with a
population larger than 20 states--is once again in the midst of a monumental criminal-justicesystem scandal. Prosecution-team shenanigans have marred at least 36 recent or ongoing cases,
including ve death-penalty trials. The plots involve winning convictions with a triple
courthouse whammy: using jailhouse informants to violate constitutional protections for incustody defendants, hiding exculpatory evidence and committing perjury to cover up the
tactics.
It's not just defense lawyers, law professors, crime victims, justice-reform organizations and
journalists who are alarmed by the revelations in the past 15 months. In March, Superior Court
Judge Thomas M. Goethals made an unprecedented, historic move after announcing he'd lost
condence in Orange County homicide and gang prosecutors to obey simple legal rules of
conduct. Goethals, a onetime prosecutor and campaign contributor to the DA, recused
Rackauckas and his entire staff from
, the capital case stemming from the
People v. Scott Dekraai
2011 Seal Beach salon massacre.

Though visibly peeved by negative media coverage, Rackauckas is sticking to the dj vu
playbook he used decades ago in the Jacobs asco. He denied any prosecutorial misconduct.
But the Fleischli case and today's OCDA messes are eerily similar in their manipulation of the
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But the Fleischli case and today's OCDA messes are eerily similar in their manipulation of the
criminal-justice system with the misuse of informants to tilt trials in the government's favor.
Will wayward prosecutors ever clean up their acts?
Thompson
Finding suspects in Fleischli's murder was not difcult. Police arrested two of several men
who'd partied with her before her disappearance, David William Leitch and Thomas Martin
Thompson. An intermittent Fleischli paramour, the violence-prone, unemployed Leitch had
threatened to kill the victim 10 days before her demise because he believed she was disrupting
his attempts to rekindle a marriage to a woman on the verge of receiving a large personal-injury
settlement. Thompson, his roommate in a coastal Laguna Beach apartment near Pacic Coast
Highway, was a photographer with a clean criminal record. He said he'd had sex with Fleischli,
passed out after consuming copious amounts of alcohol and hash, and didn't wake up until the
next morning.
Prosecutors are ethically mandated to seek justice through fair trials-not just engineer purported facts in an
effort to win cases.
Jacobs' case had strengths. Thompson initially told minor lies when questioned. The crime lab
found his DNA in the victim's vagina. Forensic testing also linked Leitch's shoes to prints found
at the burial spot, as well as bers on the corpse to ones located in his pickup truck.
OCDA charged both men with rape and murder. During the preliminary hearing, prosecutor
Daniel Brice voiced his version of the crime, claiming Leitch was the "only person" with a
motive and "recruited" Thompson to assist. To bolster that stance, Brice summoned four
jailhouse informants to testify: Daniel Vogel, David Wright, Timothy Gravelle and Robert Evans.
Each inmate claimed Thompson admitted he'd had consensual sex with Fleischli and afterward
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helped Leitch kill her.

That narrative didn't last, however. The ofce reassigned the case to Jacobs, who tried
Thompson rst, but dropped the rst four informants in exchange for two new ones, Edward
Fink and John Del Frate. This duo claimed Thompson confessed he'd raped Fleischli, then
murdered her to cover up his sexual assault, and that Leitch aided only with the disposal of the
corpse. In 1984, Jacobs successfully urged a jury to impose the death penalty against Thompson
for committing rape and murder.
Prosecutors are ethically mandated to seek justice through fair trials--not just engineer
purported facts in an effort to win cases. But for Leitch's trial, Jacobs abandoned the story he
told to put Thompson on San Quentin State Prison's death row. Reverting back to OCDA's
original version, he argued evidence proved beyond a reasonable doubt that Leitch murdered
Fleischli. To do so, Jacobs sidelined Fink and Del Frate and instead used the original four
informants. He also summoned Thompson's defense witnesses to testify, the same ones he'd
blocked from participating in the death-penalty case.
"So we have to ask ourselves, 'Why would Mr. Thompson murder Miss Fleischli alone in an
apartment where he lived with no transportation, no means to move the body and wait for Mr.
Leitch to come home to be an A-1 witness for the murder of his ex-girlfriend?'" the prosecutor
asked--in direct contradiction of his argument at Thompson's trial. "'Is that reasonable or
logical?'"
The tactic worked. In 1985, Jacobs won the case, and Leitch received a second-degree murder
conviction with a term of 15 years to life. At the time, nobody understood the extent of the
prosecutor's cheating or could have known that OCDA would continue the same informant
abuses to the present era.
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Sanders
Josue Rivas/OC Weekly
Inside a cluttered ofce on the top oor of an Eastern-bloc-, 1970s-style government building in
Santa Ana, Assistant Public Defender Scott Sanders' eyes don't leave an important document as
he elds multiple, rapid-re work calls. But the process isn't seamless. Not exactly a master of
modern technology, Sanders--a Prius-driving husband and father of three overachieving kids-labors to gure out how to use his less-than-coveted-brand cell phone. "Oh, come on!" he
pleads with the device before laughing at himself.
But the 23-year attorney, a Chicago native who graduated from the University of Wisconsin and
obtained his law degree from Emory University in Atlanta, doesn't struggle to answer questions
about Orange County's festering informant scandal. Sanders possesses an encyclopedic mind.
Without looking at records, he can regurgitate names and dates, as well as the contents of police
interviews, testimony, court rulings and obscure sections from old legal briefs.
This expertise isn't surprising. While simultaneously--and separately--representing accused
killers Dekraai and Daniel Wozniak, Sanders became curious about suspicious law-enforcement
moves and what he perceived to be a lack of transparency. With law clerks, he spent a year
digging and pieced together more than 60,000 pages of records to outline how prosecution
teams, including Sheriff Sandra Hutchens' deputies inside the Orange County Sheriff's
Department (OCSD), secretly used informants, and then hid the evidence unless it benetted the
government's trial position. In late 2014, he awed defense lawyers across the state when he
discovered OCSD operates a clandestine, 25-year-old records system called TRED. The system
contains exculpatory data for defendants, but agency ofcials had considered the database
outside the reach of court orders for discovery.
According to Sanders, he so far has found 18 cases of prosecution teams improperly
withholding informant records from the defense, and he wonders how many more examples
remain hidden. The callousness of the process isn't only seen in the Thompson matter, but also
in the case of Luis Vega, a 14-year-old boy accused of attempted murders. Prosecutors kept Vega
in custody for two years until 2010, long after they received valid informant evidence of his
innocence.
The DA's reaction to the revelations hasn't been appreciative. Trying to capitalize on unsavory
stereotypical images of ambulance-chasing defense lawyers, Rackauckas wants the public to
believe Sanders is the person gaming the system and unfairly tarnishing his prosecutors.
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believe Sanders is the person gaming the system and unfairly tarnishing his prosecutors.
Meanwhile, since November, his ofce has quietly dropped or reduced sentences in four murder
and attempted-murder cases rather than risk additional embarrassing disclosures of cheating
that trials would have likely produced.
It's safe to say that at the DA's headquarters, Sanders is the most loathed person on the planet.
Prosecutors insist their courtroom opponent is too quick to see imaginary conspiracies. He
doesn't care. Sanders is offended Rackauckas, Hutchens and their staffs claim ignorance of the
abuses as excuses for avoiding needed reforms. "OCDA and OCSD ofcials have had a collective
commitment to defying discovery [of evidence] laws," says Sanders. "They possess a deeply
entrenched mindset of ignoring the unreliability of informants, the improper use of informants
and the concealment of informant evidence during trials."
With Thompson awaiting execution, a state appellate panel, the California Supreme Court and
Governor Pete Wilson couldn't nd anything troubling about the death-penalty conviction.
Indeed, Wilson said it would be "an absolute tragedy and a travesty of justice" to upset the case.
But in 1997, judges at the U.S. Court of Appeals for the Ninth Circuit were aghast. They attributed
the lack of a fair trial to extensive shenanigans by Jacobs and defense lawyer Ron Brower, who
was trying to get hired as a deputy district attorney while representing Thompson.
According to the federal judges, Brower's performance had been "constitutionally decient" by
failing to effectively challenge the informants' veracity as well exploiting holes in Jacobs' case.
For example, the court observed key forensic evidence the defense lawyer failed to advise jurors
about: "Both the lack of [semen] drainage [from the victim's vagina onto the crotch of her pants]
and the infrequent sperm suggested that Fleischli had douched or washed after sex, consistent
with consensual sex, but not with rape" followed by murder.
The ineptitude plus what they saw as Brower's shifty, post-trial explanations alarmed the judges
because of the dire stakes. "Brower somehow found it unnecessary to pursue readily available
evidence that would have undermined the state's rape case," they ruled. "Absent Brower's
ineffectiveness, the outcome of Thompson's trial would in all probability have been different-he most likely would not have been convicted of the rape or the rape special circumstance, and
therefore could not have been sentenced to die."
Jacobs' tactics also "fatally" undermined condence in the conviction, according to the federal
judges. They opined, "A prosecutor cannot, in order to convict two defendants at separate trials,
offer inconsistent theories and facts regarding the same crime."
Labeling Jacobs' scheme unethical wasn't a close call; the court ruled it agrantly violated the
"bedrock" of "well established" due process principles.
The judges also slammed the prosecutor for hiding two key pieces of exculpatory evidence from
the defense and the jury. After his arrest, Leitch told police he'd arrived home at 3 a.m. on the
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the defense and the jury. After his arrest, Leitch told police he'd arrived home at 3 a.m. on the
night of Fleischli's death and found Thompson engaged with her in consensual sex before he
left. The statement increases in potency considering it did not help Leitch's case.
During Thompson's trial, the only alleged evidence of a rape was provided by Fink, whom
Jacobs told the jury was credible. He also vouched for Del Frate. "There's no reason whatsoever
they have to lie," the prosecutor said during closing arguments. "There's no motive to fabricate."
Jacobs' assertion misled the jury. Del Frate, known by relatives as "a pathological liar," attributed
to Thompson's supposed confession erroneous information contained in newspaper articles.
The prosecutor also kept secret that Fink--a heroin addict and career criminal--had plenty of
motive to tell the prosecutor what he wanted to hear. For years, his snitching for lawenforcement agencies in Orange County, Long Beach and Los Angeles had resulted in a long list
of perks. Hidden records show cops gave him special transportation, easier bail terms, shorter
jail sentences, cash, in-custody housing perks and occasionally allowed him to escape charges
after being caught committing crimes. Telling the jury his motive for squealing on Thompson
was based on heartfelt sympathy for the victim he'd never met, Fink denied receiving any
benets for aiding Jacobs, who quietly lifted the informant's parole violation hold after
receiving his help.
Another piece of explosive evidence never reached the Thompson defense despite legal
mandates. OCDA's "informant index" carried a formal entry made a year before Jacobs
employed Fink. It stated, "Unreliable operator."
Summing up their contempt for the prosecutor's conduct, the federal judges observed he
"manipulated witnesses and evidence" in a "desire to win at any cost."
For several decades, Mark Scott Cleveland served as an informant who helped Rackauckas win
convictions in the 1980s when he worked as a deputy DA. OCDA has called Cleveland as a
witness on multiple occasions over the years. Though the agency's informant index listed him as
a "problem informant" who "cannot be trusted," those assertions were rarely shared with
defense lawyers. In fact, prosecutors--including Marc Rosenberg, now a high-ranking
supervisor known for his gruff, hardball mindset--used Cleveland to claim he'd heard damning
jailhouse confessions and vouched for his credibility.
This informant is unquestionably part of the county's criminal-justice legacy. In April 1989, the
published "Jailhouse Snitches: Trading Lies for Freedom." The news article
Los Angeles Times
quoted Steve Vulpis, then an LA County Jail inmate, who admitted he and other informants told
prosecutors anything they wanted to hear in order "to go home."
The story also quoted one informant from OC: Cleveland. He was blunt in his assessment of
courtroom shams conducted by other snitches and sponsored by the government, saying, "A
way you can get around maybe not being able to get a confession right away [from a targeted
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way you can get around maybe not being able to get a confession right away [from a targeted
inmate] is create one."
* * * * * Following the Ninth Circuit's potent rebuke of the fairness of Thompson's trial, the case
landed at the U.S. Supreme Court in April 1998. Chief Justice William Rehnquist's 5-4 majority at
the time had spent years erecting a series of legal hurdles protecting state prosecutors from
claims by wronged defendants. Critically, this majority of justices backed tough procedural
measures designed to block lower federal appellate courts from stepping in to protect
individuals whose constitutional rights had been trampled.
Rehnquist's majority didn't care that Thompson's lawyer failed to meet constitutionally minimal
defense standards or that Jacobs used two contradictory theories. They weren't troubled the
prosecutor hid potentially trial-changing evidence. They conceded the two informants had little
or no credibility. They even ignored a remarkable amicus brief led by seven pro-death-penalty
federal and state prosecutors, who urged them to call off the execution because of Jacobs'
ethical breaches.
"There are many disturbing aspects to the convictions and death sentence rendered and upheld
in Thompson's case that leave us little condence that the death penalty is appropriate in this
case," the prosecutors wrote.
Rehnquist and his allies weren't disturbed. In a polarizing ruling, the court rejected the appeal
based on a technical blunder. Neither Thompson nor his lawyers erred. Ninth Circuit judges
coming to the defendant's aid inadvertently missed a deadline to challenge the state's execution
order, a point the court deemed outrageous. Besides, Thompson's appeals should have been
halted early in the process because, the court declared, he could not prove his innocence to
Jacobs' charges.
In 2007, OCDA prosecutor Dan Wagner won a conviction against Anthony R. Navarro Jr. for
allegedly ordering the execution-style murder of Buena Park trucking company owner David
Montemayor ve years earlier. Navarro, an admitted Mexican Maa associate with onetime
upper-level organized-crime authority in the San Fernando Valley, had claimed he couldn't have
participated in the gang hit because the Mexican Maa (a.k.a. La Eme) wanted him dead for
working as a law-enforcement informant. Wagner belittled the testimony.
But it was true Navarro bravely served the FBI, the Los Angeles Police Department (LAPD) and
the Alcohol, Tobacco and Firearms (ATF) agency. He foiled an Eme plan to kill an undercover
LAPD cop, inltrated a Mexican drug cartel and also snitched on what would become the
Montemayor killing (see "Dial Eme for Murder," April 17). On two separate occasions, he'd called
to alert ofcers to a pending Orange County murder-for-hire plot involving a businessman.
Wagner dismissed the contacts as a ruse to concoct an alibi. But the government failed to
surrender a Mexican Maa hit list that named Navarro as a target for murder, a document the
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surrender a Mexican Maa hit list that named Navarro as a target for murder, a document the
defense views as critically supportive of the defendant's story**. Asked last year by Sanders and
this year by the
why the potentially vital piece of evidence never found its way to the
Weekly
defendant's lawyers for trial, Wagner said he couldn't recall. Navarro awaits execution.
*****
On July 13, 1998, all the potential judicial and political roadblocks to Thompson's lethal
injection nally vanished. California Attorney General Dan Lungren assured the public the
system had worked perfectly and advised there was no cause for alarm. Lungren said, "Let there
be no mistake about this, Mr. Thompson is a guilty man."
Shortly thereafter, inside San Quentin State Prison, a reportedly withdrawn Thompson, 43 years
old and described by ofcials as "a model prisoner," sat in a deathwatch cell with his reverend
and ate his last meal: Alaskan king crab, salad, fried rice, spare ribs, a chocolate sundae and
Coca-Cola.
At 11:52 p.m., guards escorted him into the execution chamber and strapped him to a padded
table. Outside the prison walls, more than 100 protesters holding lit candles and handmade
posters gathered in the presence of TV-news camera crews. A catheter to deliver a fatal dose of
narcotics--sodium pentothal, pancuronium bromide and potassium chloride--was plunged into
Thompson's arm. To the end, he maintained his innocence and blamed Leitch, now 56 years old
and housed at the low-security Avenal State Prison. One minute past midnight, the dose entered
his body, taking less than four minutes to kill him.
After the death, prison Warden Arthur Calderon released Thompson's nal statement: "For 17
years, the AG has been pursuing the wrong man. In time, he will come to know this. I don't want
anyone to avenge my death. Instead, I want you to stop killing people. God bless."
Rauckackas
R. Scott Moxley
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R. Scott Moxley
Veteran deputy DAs like to roll their eyes in contempt at Sanders or mad dog him in courthouse
elevators or chat unatteringly about him when he's present. A judge who once regularly said
hello in hallways stopped doing so. Wary of OCDA retribution, some colleagues in the local
defense bar fear being seen talking to him in public.
But Sanders' outrage isn't based on a popularity contest. Besides, he's focused on his clients:
Dekraai and Wozniak, both of whom he agrees should be given terms of life in prison without
the possibility of parole for their crimes. He worries one or both might someday be executed
followed by even greater revelations of additional prosecution team mischief to secure their
deaths. And he's pondering future capital cases here.
"The defense bar's ability to expose this misuse of informants, and thus protect defendants from
conviction based in part on illegal and dishonest activity, has been fatally compromised by law
enforcement's systematic concealment of evidence in this county," he says. "Unfortunately, that
history continues to the present day, without any sign that the OCDA, the OCSD or other lawenforcement agencies have the slightest intention of changing their methods of operation."
Sanders says it's time for honest prosecutors to end their silence.
"Not a single prosecutor or ofcer has been held accountable for the illegal and unethical
conduct that has taken place," he said. "This shows that there are far too many members of the
OCDA and OCSD who either endorse cheating or lack the courage to stand up to their
colleagues who cheat."
Rackauckas believes Sanders is overdramatizing the mess. The DA claims errors by his staff and
police agencies can be solved by training sessions and increasing his annual budget. Part of that
training is apparently nefarious. His deputies have spent the past six months demanding judges
seal records so reporters cannot monitor questionable maneuverings.
But Kate Corrigan, a former prosecutor and current defense attorney who serves as president of
the local criminal defense bar, says the DA is fooling himself if he believes retraining is the only
solution. "The systematic problems [Sanders discovered] demonstrate that a major cultural
change needs to occur throughout law enforcement in Orange County," she said. "Internal
educational programs are not enough."
**[Correction & Update:
This article originally noted that two documents were hidden from
Navarro's defense lawyer. But two months after publication OCDA officials advised they'd reviewed
files and found only one key piece of evidence, the Mexican Mafia hit list with Navarro's name on it,
had not been surrendered. Prosecutor Wagner says the short-changing of the defense wasn't
intentional because he claims he never received the information. A report by a sheriff's deputy about
the hit list, however, indicates it was forwarded to OCDA during Navarro's 2007 trial and more than
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the hit list, however, indicates it was forwarded to OCDA during Navarro's 2007 trial and more than
seven weeks before the jury recommended the death penalty. From his perspective, Wagner maintains
its disclosure would not have aided the defense and shouldn't result in a vacated conviction. Navarro,
who sits on San Quentin State Prison's death row, wants a new trial. Earlier this month, Wagner
supplied his response to the
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"Hell no!"
's OC Snitch Scandal story archives.
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8/8/2016

Recent Proof of Prosecutorial

WEDNESDAY, MAY 6, 2015 AT 2:02 P.M.

2011 Seal Beach salon massacre.

helped Leitch kill her.

supplied his response to the

Go HERE to see the

Orange County Register:

's OC Snitch Scandal story archives.

Follow OC Weekly on Twitter @ocweekly or on Facebook!

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