Case # 12ZF0137 (Wozniak)
Date: June 9, 2016
OCDA TURNS OVER RECENTLY UNCOVERED OCSD SPECIAL HANDLING LOG TO COURT AND FILES BRIEFS REQUESTING HEARING TO TURN OVER MATERIAL TO DEFENSE AND PROTECT PRIVILEGED DATA
*OCDA sets out concrete action plans to remedy OCSD’s previous nonproduction of documents
SANTA ANA, Calif. – The Orange County District Attorney (OCDA) today turned over to the court a complete copy of the newly obtained Special Handling Log (SH Log) from the Orange County Sheriff’s Department (OCSD), and filed briefs to seal privileged data and request a court hearing to turn over discovery to the defense in the People v. Scott Dekraai. In May 2016, hearings in People v. Daniel Wozniak were held in the Honorable John D. Conley’s courtroom to confirm that the defense is being given all the materials to which they are entitled, and portions of recently-uncovered set of jail records were produced to defendant Wozniak by the OCSD in response to third-party subpoenas served on OCSD by the defense.
During the recent May court hearings in Wozniak, the OCSD custodian of records testified that OCSD management and command staff previously knew nothing of the existence of a set of jail records called the SH Log described in court as a daily activity log of the jail’s special handling deputies. Correspondingly, the OCDA did not know of the existence of this set of jail records.
Today, June 9, 2016, during an in-camera hearing, the OCDA filed two briefs with the Honorable Thomas M. Goethals in the People v. Dekraai case along with the un-redacted SH Log. In one brief, the OCDA requests the court temporarily seal the SH Log because it may contain privileged information. The other brief is a request for an in-camera hearing in order to turn over the SH Log to defense. The briefs were filed in Judge Goethals’ court because the SH Log contains material that impeaches the testimony of several OCSD witnesses who testified at the prior hearings of the Dekraai case. The OCDA is fulfilling its duty to correct the record by producing the SH Log to the court. The SH Log contains material that is also discoverable to the defense pursuant to Brady v. Maryland (1963) 373 U.S. 83, and responsive to prior court discovery orders. The OCDA, then, must also produce material from the SH Log to the Dekraai and Wozniak defense, who the OCDA consulted with as well as Deputy Attorney General Theodore Cropley, appellate counsel for the California Attorney General (CAG). Both have indicated that in their respective opinions that the OCDA may submit the complete SH Log to the court under seal.
The next court date on this matter is tentatively set for July 8, 2016, at 9:00 a.m. in Department C-45, Central Justice Center, Santa Ana.
How SH Log Came to Light
In February 2016, during a habeas corpus hearing in In re Henry Rodriguez (Case #98NF2206), notes from OCSD Special Handling Deputy Robert Szewczyk came to light during his testimony. Shortly thereafter, the Wozniak defense subpoenaed OCSD for any notes written by special handling deputies. According to the testimony of OCSD Sergeant Kristin Monteleone in the Wozniak case, while searching for any such notes, she learned from OCSD Deputy Ben Garcia that special handling deputies had kept a log, which Monteleone referred to as the “Special Handling Log.” Monteleone testified that she had no prior knowledge of the SH Log’s existence.
On May 3, 2016, OCSD produced 81 redacted pages of the SH Log to the Wozniak defense and the OCDA, who in turn produced the SH Log pages to the CAG the next day.
Upon learning of the SH Log, the OCDA promptly requested a meeting with OCSD command staff. At the meeting on May 10, 2016, the OCSD turned over a full copy of the SH Log, at the request of the OCDA, which is comprised of 1,157 pages. The OCDA subsequently turned over the full SH Log to the CAG.
Past and Present OCDA Requests for Pertinent Records
The SH Log differs from TRED records, according to OCSD, in that all inmates have their own TRED record, whereas the SH Log recordsthe everyday activities of the special handling deputies, including their interactions with other jail staff, police officers, and inmates including informers. The use of TRED records came to light in the Dekraai case.
Based on the Jan. 23, 2013, court order in the Dekraai case, the OCDA made repeated requests to the OCSD telephonically, in writing, and at meetings, which included in part:
- The names of any and all cases in which Inmate F, Fernando Perez, had offered to provide and/or had provided information pertaining to a suspect and/or defendant in a criminal matter (including state and federal investigations).
- Any and all discovery, including but not limited to reports, notes, writings, oral communications, and recordings, pertaining to any and all cases in which Fernando Perez had offered to provide and/or provided information relating to a suspect and/or defendant in a criminal case (both state and federal).
- Any and all reports, notes, writings, oral communications, and recordings memorializing communications between representatives of law enforcement (including but not limited to the OCDA, the OCSD, and the Seal Beach Police Department), and either Fernando Perez or his representative(s), relating to (a) the instant matter, and/or (b) any and all other cases in which Fernando Perez had offered to provide or has provided information related to a suspect or defendant in a criminal matter.
- Any and all reports, notes writings and/or recordings discoverable to the defense pursuant to Brady.
The SH Log would have been responsive to this and other subsequent requests made by the OCDA to OCSD; however, the SH Log was never produced.
Summary of SH Log Content
The SH Log was kept from 2008 to 2013 and includes informal descriptions of activities which the deputies variously termed as “plans,” “capers”, and “operations,” which often included use of covert recording devices. The deputies refer to previously-disclosed, large-scale, multi-agency operations such as “Operation Black Flag,” and “Operation Stormfront,” as well as smaller operations never before revealed, which the deputies seemingly self-styled with names such as “Operation Okie Doke.” There are informer names on almost every page as well as numerous mentions of high-profile inmates and frequent confidential informer(CI) interaction with numerous inmates, including high-profile inmates. The SH Log also mentions outside agencies interacting with special handling deputies about inmates and their numerous inquiries about running “operations.” The “operations” that are unfamiliar to the OCDA appears to be part of informal jail banter with insider references related to jail security and not the case related to the inmate.
The jail special handling deputies cultivated and utilized a group of informers. The informers were often kept in a particular sector, and they would often know each other. In exchange for their information, some informers were given favors such as phone calls and visits. The SH Log contains references to extensive recordings in multiple sectors of the jail.
Impact of Newly Uncovered SH Log on Criminal Cases
At present, the OCDA will continue to analyze the extent of the impact of the newly uncovered SH Log on open and closed criminal cases. At first glance, there is new material in the SH Logs that were central to earlier hearings in the Dekraai case. For example, Perez’s initial interview on June 14, 2010, was recorded and notes were taken, both maintained by Garcia. Perez, who was in disciplinary isolation (DI), was moved by OCSD Deputy William Grover on Oct. 16, 2011, “from DI to Mod L,” and no further description was documented. It is not clear from Grover’s entry whether Perez had been housed in DI, or was only present in DI for a short period of time. Testimony and records introduced at prior hearings in this case showed that Oct. 16, 2011, was the second day that Perez and Dekraai were housed next to each other in Mod L, Sector 17. Additionally, the SH Log shows that Perez provided more information during his stay in Mod L from approximately September to December 2011 than is reflected in his previously-revealed “CI notes.” Production of the SH Log entries and recordings summarized in this paragraph has already been made to the Dekraai defense.
OCDA’s Action Plan to Remedy Legal Issues
The OCDA will continue to analyze the entirety of the SH Log material to determine what other cases, if any, were affected, what Brady issues and Massiah v. United States (1964) 377 U.S. 201 violations, if any, need to be reported to defendants, the court, and the CAG.
The OCDA has referred all materials to the CAG to be reviewed in their ongoing investigation of the OCSD.
The OCDA will also take the following action in order to remedy any legal issues from the newly uncovered SH Log to ensure any constitutional rights of a defendant are protected:
- Dekraai and Wozniak prosecutors are analyzing the SH Log for the purpose of providing the defendants all appropriate discovery.
- An experienced prosecutor will be assigned to review the SH Log for the purpose of identifying all other current and former criminal defendants who are identified in the SH Log. This prosecutor, working with the trial prosecutor assigned to each identified defendant, will then determine whether each identified defendant received the material to which he/she is entitled.
- This prosecutor will be assisted in his/her review of the SH Log by the Dekraai and Wozniak prosecutors, who have already invested significant time in reviewing and analyzing the contents of the SH Log.
- The SH Log is a Microsoft Word document making it searchable using the “keyword” search function, and it will aid in the identification of criminal defendants and informers.
- The Dekraai prosecutors have identified additional materials, such as reports and recordings, which are referenced in the SH Log which the OCDA has not previously received from OCSD. The OCDA has made, and will continue to make, requests of OCSD for these materials.
- In the very near future, the OCDA will be determining and inquiring why the SH Log and these other materials mentioned in the SH Log, were not previously provided to the OCDA in response to OCDA’s prior requests and the court’s prior discovery orders.
- Dekraai prosecutors will conduct briefings of other OCDA prosecutors to alert them to the existence of the SH Log and educate them about the general content of the SH Log.
- The OCDA is analyzing prior courtroom testimony of certain OCSD deputies and determining whether the content of the SH Log substantially impeaches their testimony such that the OCDA has a duty to notify any criminal defendant of the impeachment material.
The two briefs titled, “SH Log – Application to Seal Record,” and, “SH Log – Motion to Regulate Disclosure,” may be found on the OCDA website at www.orangecountyda.org, by selecting the Reports tab under the Reports dropdown menu.
Assistant District Attorney Dan Wagner of the Homicide Unit wrote the briefs. Wagner and Senior Deputy District Attorney Scott Simmons of the Homicide Unit were both present in court today at the hearing.