Judge Removes Prosecutor from Jail Beating Case

Originally posted at 5:20 p.m. March 14, 2014.

By PAUL ANDERSON

City News Service

In a rare move, an Orange County Superior Court judge today removed a prosecutor from a jail beating case stemming from the state and federal crackdown on inmate violence dubbed Operation Smokin' Aces.

Deputy District Attorney Erik Petersen was removed from the case because he violated a fundamental law that requires prosecutors to hand over evidence to defense attorneys, said Orange County Superior Court Judge Thomas Goethals.

The judge found that Petersen made a so-called Brady violation, named after a landmark case where the U.S. Supreme Court held that a defendant is entitled to get any and all evidence that may prove innocence.

"I've never experienced this in my 35 years in practice," said Rudy Loewenstein, who represents Marcus Allen Jeffries in this jail beating case.

Goethals removed another Orange County prosecutor from a case last July for a similar issue of withholding potentially exculpatory evidence from defense attorneys.

And the Brady Rule is also a factor in the looming court battle with defense attorneys representing Scott Dekraai, who is charged with the worst mass killing in Orange County history, where eight people were killed.

Petersen is expected to be called to testify in that case, which begins next week, about the government's handling of confidential informants in Orange County jails. Goethals is also presiding over the Dekraai case.

Dekraai's attorneys are trying to convince Goethals to exclude the death penalty as punishment and to have the Orange County District Attorney's Office removed from the case, as a result of prsecutorial misconduct.

Goethals said today he did not find that Petersen was intentionally trying to skirt the law.

"This is not personal," Goethals told the prosecutor. "This is not a punitive measure, it is a remedial measure."

Goethals said he differed with Petersen about whether the evidence in question should have been turned over to defense attorneys. Petersen argued that he believed that when he supplied defense attorneys with a three-page memo of the criminal background of two confidential informants that should have fulfilled his obligation.

"I believe you felt that was enough," Goethals said. "And that's where we disagree... (Petersen) didn't view his obligation as broadly as this court does and the law does."

In an "abundance of caution," Petersen recently turned over at least 26 discs of information about one of the informants. The defense attorneys say they received it today, prompting Goethals to delay trial for four of the defendants.

Orange County Superior Court Judge Richard King on Feb. 4 also found Petersen had improperly withheld evidence about the informant as a related case was in the jury selection stage, Goethals noted. King delayed the trial as a result and it ended up before Goethals.

Goethals also noted that in January, another judge had ordered Petersen to turn over more evidence about the informants.

Petersen argued that he did not intend to use the informant as a witness in the upcoming trial of Jeffries, Julian Riel, David Navarro and Jose Peralta, so that should fix the problem. Petersen said he also did not need the informant in a trial of another co-defendant Saul Alejandro Sanchez, who was convicted Tuesday after he insisted on dumping his attorney and representing himself.

The so-called Brady rule is "a very broad concept," Goethals said. "I don't think they have to ask you (for exculpatory evidence), you have to give it to them. Often, the defense has no way of knowing what exculpatory evidence exists. It has to do with fundamental fairness and due process."

Jeffries complained to Goethals about delays in his case and asked, "When is the discovery going to stop coming in?"

The judge replied, "That's a very good question," and went on to lament that the trial had to be delayed again while the defendants waited in jail.