justice center central 14 civic center plaza...

1 SHARON PETROSINO D pt.: C-45

2Public Defender SE ‘

SETH BANK FFCE3 Senior Deputy Public Defender cQUt’1”’ earing: 9-22-16

SCOTT SANDERSAssistant Public Defender F I L E D

5 State Bar No. 159406 SUPERIOR COURT OF CALIFORNIACOUNTY OF ORANGE14 Civic Center Plaza CENTRAL JUSTICE CENTER

Santa Ana, California 92701SEP —?

7 Telephone: (714) 834-2144Fax: (714) 834-2729 ALAN CARLSON, Clerk of the Court

8 scott. [email protected] pRENDA RAAB9

B

_____________,DEPUTY

Attorneys for Defendant Scott Dekraai10

11 SUPERIOR COURT Of CALIFORNIA

12 COUNTY OF ORANGE, CENTRAL JUSTICE CENTER

13 PEOPLE OF THE STATE OF CALIFORNIA, Case No.: 12ZF0128

Plaintff DEFENDANT’S BRIEF ON THE14 PROSECUTION’S SECTION 1054.7

15 v. HEARING.

16 SCOTT EVANS DEKRAAI,17 Defendant.

18

19 STATEMENT OF FACTS20 Discovery orders and motions/evidentiaiy hearing21 On January 25, 2013, over the objection of the OCDA, this Court ordered the22 OCDA to provide Dekraai with numerous materials related to the informant work of23 Fernando Perez. Based in part on the discovery provided pursuant to this order, about one

— year later Dekraai filed three motions: a motion to dismiss the death penalty based on

—j outrageous government conduct, a motion to recuse the OCDA, and a motion to excludeCJ

‘ Dekraai’s statements to Perez based on Massiah. The Court found Dekraai made a

ftj sufficient showing for an evidentiary hearing on the recusal motion and determined the

1

Defendant’s brief on section 1054.7 hearing - Dekraai

1 evidentiary hearing for all three motions would be heard simultaneously. Testimony was

2 heard from several members of the OCSD (including its Special Handling unit), several

3 police officers from other agencies, and several members of the OCDA.

4 In August of 2014 the Court denied the motion to dismiss and the recusal motion,

5 but granted the Massiah motion. The evidentiary hearing for the recusal motion and

6 motion to dismiss was reopened in December of 2014 based in part on previously

7 undisclosed TRED records, and a letter from the OCSD confirming its approval of a

8 Massiah violation in a different case (Leonel Vega) discussed during the initial evidentiary

9 hearing. (14 CT 3607.)’ In March of 2015 this Court granted the motion to recuse the

10 OCDA but denied the motion to dismiss the death penalty. The Attorney General appealed

11 the recusal order and the appeal is still pending in the Court of Appeal.

12 OCDA briefand Wagner declaration

13 On June 9, 2016, the OCDA and OCSD filed briefs regarding the upcoming hearing

14 in this Court. Both briefs discussed the alleged recent discovery of a daily activity log

15 written by Special Handling deputies. The OCDA’s brief requested an in camera hearing

16 pursuant to Penal Code section2 1054.7 so the OCDA could present good cause to the

17 Court to restrict discovery of the logs to Dekraai. The brief is accompanied by a

18 declaration from Assistant District Attorney Dan Wagner, which purports to describe how

19 the OCDA became aware of the log.3

20 Wagner’s declaration indicates he first became aware of the existence of the log on

21

______________________

22 i Citations to “RI” and “CT” are to the reporter’s transcript and clerk’s transcript from23 the record on appeal.

24 2 All section references are to the Penal Code unless otherwise noted.25

The brief also addresses the Court’s jurisdiction to conduct the discovery proceeding26 requested by the OCDA while the recusal order is pending on appeal. At the last27 appearance Dekraai expressed his agreement that the Court has jurisdiction to conduct the

hearing and the Court agreed with the parties on that issue. Consequently this brief does28 not address the jurisdictional issue.

2


1 May 3, 2016, during proceedings that occurred in People v. Wozniak (case number

2 12ZF0137). On that date the OCSD produced $1 redacted pages of the log to the Court

3 and parties in Wozniak pursuant to a subpoena issued to the OCSD by Wozniak. On May 3

4 and May 5, 2016, the custodian of records for the OCSD testified that the log contains

5 daily activity logs kept by OCSD Special Handling deputies and that OCSD management

6 was unaware of the log until Special Handling Deputy Ben Garcia told a sergeant about it

7 in March of 2016. On May 10, 2016, OCDA senior management met with OCSD

8 command staff and requested a complete and unredacted copy of the log. The OCSD

9 immediately provided the log to the OCDA. The log consists of 1157 pages of single-

10 spaced, typewritten text. The first entry is dated September 24, 2008, and the final entry is

11 dated January 31, 2013. Wagner finished reading the log on May 24, 2016.

12 Wagner’s declaration provides examples of the information contained in the log.

13 (Wagner Declaration, pp. 7-9.) One example is the log reveals that Special Handling

14 Deputies “recruited and utilized” numerous informants, these informants were often housed

15 in a particular sector of the jail, and these informants received benefits in exchange for

16 providing information. (Id. at p. 7.) This directly contradicts the testimony of Special

17 Handling Deputy Seth Tunstall, who during the evidentiary hearing was asked, “Is it even

18 part of the job of Special Handling to try to locate informants, develop informants, things

19 like that?” (28 RT 6297-6298.) He replied, “No.” (28 RT 6298.) Tunstall also testified he

20 is not aware of Special Handling deputies signing up any informants. (28 RT 63 64-6365.)

21 It also directly contradicts the testimony of Garcia, who testified that Special Handling

22 deputies do not sign up informants nor work with informants outside of the task force. (15

23 RT 3385, 3388.) It similarly contradicts the testimony of Deputy William Grover, who

24 was asked “One of the jobs working in Special Handling is to work with informants in the

25

_______________________

26 This Court granted Dekraai’s discovery motion for records relating to Perez’s27 informant work on January 25, 201 3—just six days before the last entry was made in the

log.28

3


1 jail, correct?” (21 RT 4606.) He replied, “No.” (21 RT 4606.) Grover went on to say, “I

2 don’t work with informants. I very rarely work with informants. And to be honest with

3 you, I try and avoid jailhouse informants.” (21 RT 4606.)

4 Wagner also writes the log contains new material relating to issues raised during the

5 evidentiary hearing on Dekraai’s motions. For example, the log reveals that Perez’s first

6 interview as an informant in June 201 was recorded, Garcia took notes of the interview,

7 and Garcia possessed the recording and the notes. (Wagner Declaration, p. 8.) This

8 recording and notes were never mentioned by Garcia during his testimony, nor were they

9 discovered to Dekraai by the OCDA.6 Another example is the log reveals that Grover had

10 contact with Perez on October 16, 2011, one day after Perez and Dekraai were placed in

11 adjoining cells. (Wagner Declaration, p. 9.) This contact occurred just one or two days

12 before Perez questioned Dekraai about his crimes. (4 RT 1217, 1230.) And the log reveals

13 that Perez continued to work as an informant through December 2011. (Wagner

14 Declaration, p. 9.) This directly contradicts the testimony of Garcia, who said Perez was

15 done with his informant work before he was moved next to Dekraai in October 2011. (16

16 RT 364 1-3642.) This also means that contrary to the claims made by the OCDA and

17 numerous OCSD deputies during the evidentiary hearing, Perez was not retired as an

18 informant when he and Dekraai were housed next to each other.

19

_______________________

20 This first interview of Perez as an informant occurred six months before Perez21 became an informant for the federal government. (16 RT 3532-3534.)

22 6 Wagner writes that the OCDA obtained a copy of the recording and Garcia’s notes23 and has already turned them over to the defense. It should be noted while counsel for

Dekraai received the recording of this interview in the Wozniak case, he has not received24 that discovery in this case. This is not just a pedantic distinction—outside of the mention25 of the Wozniak case in these briefs, and referenced during the hearing on August 16, 2016,

the record in this case does not contain what happened in Wozniak. Further, the limited26 discovery from the log provided to counsel for Wozniak in the Wozniak case is subject to a27 protective order prohibiting its use in any other case. The record should be very clear as to

what discovery from the log Dekraai has received in this case. As of the writing of this28 brief, Dekraai has not received any discovery from the log in this case.

4


1 Wagner also provides his legal analysis with respect to discovery of the log.

2 (Wagner Declaration, pp. 9-10.) Wagner believes the log contains material that impeaches

3 the testimony of several OCSD witnesses, and perhaps other witnesses and evidence

4 presented at the evidentiary hearing. (Id. at p. 9.) As such Wagner believes he needs to

5 “correct the record” by producing the log to the Court and Dekraai. (Ibid.) Wagner also

6 believes the log contains material that is discoverable to Dekraai pursuant to Brady and that

7 is covered by previous discovery orders by the Court. (Ibid.) Thus, Wagner believes he is

8 required to produce the log to the Court and Dekraai. (Ibid.)

9 However, Wagner believes the log contains privileged material such as the names of

10 informants and that revealing their names could jeopardize the safety of the informants and

11 their families. (Wagner Declaration, pp. 9-10.) Wagner also believes the log contains

12 information about ongoing criminal investigations “and other matters of official

13 information” and the disclosure of this information would be against the public interest.

14 (Id. at p. 10.) Wagner further states that the OCSD will claim certain privileges over

15 material in the log. (Id. at pp. 9-10.) In light of these concerns, Wagner is requesting an in

16 camera hearing pursuant to section 1054.7 to establish good cause to prevent Dekraai from

17 receiving some of the infonnation in the log.

18 OCSD briefand Moitteteone declaration

19 The OCSD brief is a notice of intent to claim privilege over the log and a request for

20 this Court to conduct an in camera hearing to rule on the privilege claims. A declaration

21 accompanying the brief by OCSD Sergeant Kirsten Monteleone purports to describe how

22 OCSD management became aware of the log. Monteleone writes that around February 9,

23 2016, Deputy Szewcyk disclosed the existence of notes he wrote and maintained while

24 working as a Special Handling Deputy at IRC from 2004 to 2008. (Monteleone

25 Declaration, p. 1.) These notes are not official department records maintained in a file or

26

27 Although it is not discussed in the declaration, Dekraai believes the existence ofthese notes were revealed during hearings related to a habeas petition in People v.

28 Rodriguez (habeas case number M- 15746), which was presided over by this Court.

5


1 database that the custodian of records would customarily review to respond to subpoenas

2 and discovery requests. (Ibid.) As a result of the revelation of these notes, OCSD began a

3 “comprehensive search” for “any other records, notes, and recordings held by current and

4 former Special Handling deputies” that were not maintained in “readily identifiable” OCSD

5 files and records. (Id. at p. 2.)

6 During this comprehensive search OC$D command staff learned of the existence of

7 the Special Handling log in March of 2016.8 (Monteleone Declaration, p. 2.) The Special

$ Handling log is not an official OCSD record maintained in a file or database the custodian

9 of records would customarily review in order to respond to subpoenas or discovery

10 requests. (Id. at pp. 2-3.) Like Wagner, Monteleone writes the log covers the time period

11 between September 200$ and January 2013 and contains information about infonnants,

12 how inmates were classified and housed within the jail, and numerous references to

13 inmates, law enforcement personnel, and civilians. (Id. at p. 3.) The OCSD is in the

14 process of reviewing the log to see if it contains information responsive to prior subpoenas

15 served on the department in pending criminal cases, including the case at bar. (Thid.)

16 The OCSD’s brief states that it believes “substantial portions” of the log are

17 privileged under Evidence Code sections 1040 and 1041, Penal Code section 13300, and

18 the right to privacy. Consequently the OCSD is requesting an in camera hearing pursuant

19 to Evidence Code sections 915 and!or 1042 so the Court can rule on its privilege claims.

20 /1/

21 /1/

22

23

24

258 Monteleone’s declaration does not reveal who told OCSD command staff about the

26 Special Handling log. However, as noted Wagner’s declaration says it was Garcia.27 (Wagner Declaration, p. 7.) Garcia testified during both phases of the evidentiary hearing

in this case and never disclosed the existence of the log.28

6


1 June 9, 2016 exparte in camera hearing

2 On June 9, 2016, The OCDA appeared in this Court for an ex parte hearing that was

3 conducted in camera. At the OCDA’s request, the courtroom was closed. At that hearing

4 the OCDA filed a complete and unredacted copy of the log under seal with the Court.9 A

5 brief discussion was held regarding a future date for the OCDA’s in camera hearing under

6 section 1054.7. The Court ordered the transcript of the hearing sealed.

7 June 9, 2016 OCDA press release

8 Later that same day, the OCDA issued a four page press release regarding the ex

9 parte in camera hearing that just took place. A copy of the press release is attached as

10 Exhibit A. At the top of the press release it states that “OCDA sets out concrete action

11 plans to remedy OCSD’s previous nonproduction of documents.” The release summarizes

12 the OCDA’s brief and Wagner’s declaration, including how the log came to light and the

13 content of the log. It also incorrectly states that portions of the log summarized in the

14 release have already been disclosed to the Dekraai defense team. (See footnote 6, supra.)

15 Under the section titled “OCDA’s Action Plan to Remedy Legal Issues,” the release

16 states the OCDA has provided the Attorney General with the log. Further, an experienced

17 OCDA prosecutor will be assigned to review the log to determine whether any current and

18 former defendants were entitled to receive material from the log in their cases. The OCDA

19 is analyzing prior courtroom testimony of certain OCSD deputies to determine whether the

20 content of the log “substantially impeaches their testimony such that the OCDA has a duty

21 to notify any criminal defendant of the impeachment material.” The Dekraai prosecutors

22 are going to brief other OCDA prosecutors to alert them to the existence of the log and

23 educate them about the general content of the log. And finally, “[i]n the very near future,

24 the OCDA will be determining and inquiring why the SH Log and these other materials

25 mentioned in the SH Log, were not previously provided to the OCDA in response to

26

27The OCDA correctly told the Court that Dekraai had no objection to the Court

2$ receiving the log under seal.

7


1 OCDA’s prior requests and the court’s prior discovery orders.”°

2 Subsequent court appearances

3 On July 8, 2016, counsel for Dekraai, the OCDA, and the OCSD appeared in this

4 Court. The Court began by noting it sealed the transcript of the ex parte in camera hearing

5 on June 9, and then saw the OCDA issued a press release regarding the hearing. In light of

6 the press release, the Court indicated it did not see a further justification for sealing the

7 transcript of the June 9 hearing. The OCDA had no objection to the transcript being

8 unsealed and the Court ordered it unsealed. The parties agreed to put the matter over to a

9 future date to discuss the jurisdictional issue.

10 On August 19, 2016, Dekraai, the OCDA, and the OCSD appeared in this Court.

11 All parties agreed the Court had jurisdiction to conduct the section 1054.7 hearing, and the

12 Court determined it hadjurisdiction. The matter was continued to September 22, 2016 for

13 the section 1054.7 hearing. The OCDA and OCSD indicated they would contact other law

14 enforcement agencies to see if those agencies wanted to raise any objections to Dekraai

15 receiving the log.

16 POINTS AND AUTHORITIES

17 I. A CRIMINAL DEFENDANT’S FEDERAL CONSTITUTIONALRIGHT TO A FAIR TRIAL SUPERSEDES STATE STATUTORY

18 PRIVILEGES.

19 “No right ranks higher than the right of the accused to a fair trial.” (Press

20 Enterprise Co. v. Superior Court of Ca4fornia, Riverside County (1984) 464 U.S. 501,

21 508.) Before addressing the myriad of issues raised regarding the discovery of the log to

22 Dekraai, it is critical to first address the interplay between a criminal defendant’s federal

23 constitutional right to a fair trial and state statutory privileges. All of the privileges raised

24 by the OCDA and OCSD are state statutory privileges. Appellate courts have often

25 grappled with the conflict created when state statutory privileges are invoked to deny a

26

2710 Presumably this investigation will be conducted concurrently with the investigationinto why OCSD deputies failed to mention the TRED records during the evidentiary

28 hearing.

8


1 criminal defendant discovery necessary to his right to a fair trial. Uniformly those courts

2 have held that a state statutory privilege must yield to the defendant’s federal constitutional

3 rights.

4 The United States Supreme Court dealt with such an issue in Davis v. Alaska (1974)

5 415 U.S. 308. In Davis, the defendant was charged with burglary and grand larceny. A

6 key witness against him was a minor who was on juvenile probation for two burglaries. At

7 the time of defendant’s trial, Alaska law provided that juvenile delinquency records were

8 inadmissible in criminal court except for use in presentencing procedures if the criminal

9 court determined that such use was appropriate. (Id. at p. 311.) The trial court prohibited

10 defendant from using the minor’s probationary status during cross-examination because of

11 the confidentiality privilege created by the Alaska statute. (Ibid.) The Court reversed the

12 conviction, holding the application of the Alaska juvenile confidentiality law deprived the

13 defendant of his Sixth Amendment right to cross-examine the witness. (Id. at pp. 320-

14 321.) The Court noted that it did not intend to diminish the laudable goals of the state in

15 keeping a minor’s criminal history confidential. (Id. at p. 319.) However, “In this setting

16 we conclude that the right of confrontation is paramount to the State’s policy of protecting

17 a juvenile offender.” (Id. at p. 319.)

18 California courts also have repeatedly acknowledged that a criminal defendant’s

19 right to a fair trial outweighs important rights and privileges created by California law. In

20 in Vela v. Superior Court (1989) 208 Cal.App.3d 141, the defendants were charged with

21 the attempted murders of two Culver City police officers in two different cases. The

22 Culver City Police Department created a special investigative team (SIT) to investigate

23 shooting incidents. This team was controlled by the Chief of Police and gathered

24 information solely for use by the City Attorney in defense of civil litigation. In both of the

25 defendants’ cases, the SIT interviewed officers who were witnesses to the shootings. In

26 Defendant Vela’s case, the trial court refused to enforce his subpoena for the SIT records,

27 finding the records were protected by attorney-client privilege. In the other defendant’s

28 case, the magistrate approved the defendant’s subpoena for the records. Both losing parties

9


1 sought writ relief and the cases were consolidated. The Court of Appeal observed that

2 there were two issues it needed to resolve: Was the inforniation gathered by the SIT

3 protected by the attorney-client privilege, and if so, did the defendant’s right to a fair trial

4 outweigh the privilege? (Id. at p. 147.) As to the first question, the court concluded that

5 the officers’ statements to the SIT were primarily made for the purpose of protecting the

6 City in future civil litigation and thus fell within the attorney-client privilege. (Id. at p.

7 150.)

8 Moving to the second issue, the court noted that a trial court has broad power to

9 make discovery orders necessary to ensure the defendant receives a fair trial. (Vela v.

10 Superior court, supra, 208 Cal.App.3d at pp. 147-148.) Although the statements of the

11 officers were protected by the attorney-client privilege and thus would normally not be

12 discoverable, “adherence to a statutory attorney-client privilege must give way to pretrial

13 access when it would deprive a defendant of his constitutional rights of confrontation and

14 cross-examination.” (Id. at pp. 150-151.) Further, “The judiciary has a solemn obligation

15 to insure that the constitutional right of an accused to a fair trial is realized. If that right

16 would be thwarted by enforcement of a statute, the statute ... must yield. [Citation.]” (Id.

17 at p. 148.) Thus, the court ordered the trial courts to review the materials in camera to

18 determine if the SIT records contained information necessary for the defendant’s right of

19 cross-examination. (Id. at p. 151.) The court also noted that should information that would

20 otherwise be protected by the attorney-client privilege be provided to the defense, the trial

21 court could issue a protective order to prevent the information from being used in another

22 proceeding. (Ibid.)

23 Other well established privileges have also been found to yield to a defendant’s right

24 to a fair trial. In Rubio v. Superior Court (1988) 202 Cal.App.3d 1343, the defendant was

25 charged with sex crimes against a young girl. After his arrest, the defendant denied the

26 charges and told police the girl was making up the allegations because she had seen a

27 videotape of her father and stepmother engaging in the sexual acts she said the defendant

28 did to her. The defendant subpoenaed the videotape and the trial court refused to enforce

10


1 it, finding it was protected by the marital privilege. The Court of Appeal first found that

2 the videotape fell under the protection of the marital privilege. (Rubio v. Superior Court,

3 supra, 202 CaLApp.3d at p. 1348.) The court also recognized that the right to privacy in a

4 marital relationship is a state and federal constitutional right. (Id. at p. 1349.) However,

5 the court ultimately held that because the failure to provide the defendant with the

6 videotape could infringe upon his right to due process, the trial court should review the

7 videotape in camera. (Id. at p. 1350.) The court directed the trial court to determine if the

8 defendant’s “right to due process outweighs [the married couple’s] constitutional rights of

9 privacy and their statutory privilege not to disclose confidential marital communications.”

10 (Ibid.)

11 Thus, a defendant’s right to due process and a fair trial must supersede important

12 state statutory privileges, including the confidentiality ofjuvenile court proceedings, the

13 attorney-client privilege, and the marital privilege, as well as the state and federal

14 constitutional right to privacy in a marital relationship. The same is true here. All of the

15 privileges claimed by the OCDA and OCSD are based upon state statutes. Dekraai does

16 not mean to diminish the importance of these privileges, but rather to point out that

17 regardless of their import, they do not supersede Dekraai’s right to a fair trial.

18 Moreover, when the Court hears arguments in camera from the OCDA and OCSD

19 to restrict discovery of the log, it is important to step back and examine why the log is

20 relevant in this litigation. During the evidentiary hearing several OC$D Special Handling

21 deputies testified without any challenge from the OCDA that they do not regularly recruit

22 and use informants, that they never took any notes nor had any way to detennine whether

23 and why informants and inmates were moved within the jail, and that the only record of the

24 information provided by informants was in the informants’ notes. And the OCDA

25 repeatedly argued there was no jailhouse informant program.

26 In that context, the fact that the SH Log even exists is relevant, because it directly

27 contradicts testimony from several deputies and refutes arguments made by the OCDA.

28 Every entry in the log that indicates informants were recruited, used, andlor received

11


1 benefits in exchange for information, that indicates informants and inmates were

2 intentionally moved within the jail (either at the request of outside agencies or of the

3 deputies’ own accord), or that indicates deputies wrote down information provided by

4 informants and put that information into a SH Log accessible to other deputies is critical

5 for Dekraai’s right to a fair trial. The same is true for every entry in the SH Log that

6 references an OCDA prosecutor, or that indicates an informant was used in a case filed by

7 the OCDA, because such entries speak to the OCDA’s claim that it was unaware of a

8 jailhouse informant program. The number of entries regarding the use of informants also

9 sheds light on the duration and scope of the j ailhouse informant program, including but not

10 limited to how many OCSD deputies, outside law enforcement agencies, and members of

11 the OCDA were aware of the program. Additionally, any entry in the SH Log that

12 indicates a defendant being prosecuted by the OCDA provided helpful information to the

13 OCSD or an outside agency is relevant, because if the defendant’s attorney was not made

14 aware of the defendant providing law enforcement with helpful information, it means that

15 mitigating evidence about a defendant was withheld by the OCSD and OCDA.

16 Moreover, the SH Log is also relevant to the recent claims put forth by the OCDA

17 and OCSD command staff that they were unaware the log existed until Garcia mentioned it

18 to a sergeant in March 2016. Wagner’s declaration and the OCDA’s press release suggest

19 that the chief of the homicide unit (Wagner), Senior Deputy District Attorney Simmons

20 and their fellow attorneys were “shocked” to discover a vibrant jailhouse informant

21 program, and that the deputies running it actually documented their daily contact with

22 informants—accomplishing all of this right under the noses of unsuspecting prosecutors

23 and their investigators. The notion that the OCDA learned for the first time through the

24 SH Log that deputies “recruited and utilized” numerous informers is an unusual one

25 considering Wagner, Simmons and Senior Deputy District Attorney Howard Gundy were

26 in the courtroom on February 9, 2015, when Deputy Tunstall was confronted with his own

27

28‘ Casablanca (Warner Bros. 1942)

12


1 search warrant affidavit in which he invoked language almost identical to that found in

2 Wagner’s declaration to describe the jailhouse informant program. Surely, members of the

3 OCDA believed Tunstall had been truthful in his sworn affidavit when he stated both that

4 he had “cultivated, interviewed and supervised numerous confidential informants” (28 RI

5 6350), and that one of the jobs of the Special Handling Unit is “... developing confidential

6 informants....” (2$ RT 6347.)

7 Certainly, any doubt about which Tunstall to believe—the one who wrote the search

8 warrant or the one who testified he was the victim of poor word choices— was erased

9 when former Special Handling Deputy Jonathan Larson took the stand.

10 Q. Was one of your jobs to kind of develop informants in the jail, identify11 them and manage them if they were of assistance?

A. I would say yes.12 (30 RI 674$.)13

14And, of course, it was Larson, who also admitted that Special Handling deputies

15used particular modules to place informants and high value informants together (30 RI

166748) —a point that Wagner said the Special Handling Log (“SE Log”) revealed sixteen

months later.17

18Neither Tunstall’s search warrant affidavit, Larson’s testimony, nor the findings

19flowing from the SH Log certainly would have been a surprise to either Assistant District

20Attorney Ebrahim Baytieh or Assistant District Attorney Keith Bogardus, the prosecutors

21People v. Migitel Guilten, et al. During questioning of Tunstall in the 2011 trial, Baytieh

22asked Tunstall a pointed question:

23 Q Did you develop informants within the jail facility who were housed atyour jail during the period that you were working?

24 A Yes.

25 (Partial Reporter’s Transcript (Trial), People v. Guillen, et al., Super. Ct. OrangeCounty, No. 06CF3 677, and attached herein as Exhibit B, at p. 2065.)

26

27 Thus, the number of entries in the SH Log detailing the use of informants sheds

2$ light on the veracity of the OCDA’s claimed ignorance of the j ailhouse informant program

13


1 and even on the OCDA’s claimed ignorance of the existence of the SH Log itself. The

2 same is true for the OCSD command staff The number of entries in the SH Log and the

3 number of different deputies who made entries in the SH Log is relevant to the OCSD

4 management’s claim that it was unaware the log existed, especially if anyone who is

5 currently a part of the OCSD management staff ever made an entry in the SH Log.

6 Finally, that the last entry in the SH Log was made on January 31, 201 3—just six

7 days after this Court’s first discovery order regarding informants—is also relevant beyond

8 the obvious questions raised about the timing. If, as the OCSD claims, disclosure of the

9 contents of the SH Log would jeopardize safety in the jail, this means the $H Log was

10 necessary to protect the safety of the jail. If the SH Log was so crucial to jail safety, why

11 did deputies stop making entries in it over three years ago? Did those safety concerns end

12 In January 2013? If they did, then the OCSD’s claims that disclosing the SH Log to

13 Dekraai jeopardized j all safety are unfounded. On the other hand, if the use of the SH Log

14 was and is necessary to maintain jail safety, then what replaced log on February 1, 2013?

15 As the Court reviews the SH Log and listens to arguments from the OCDA and

16 OCSD about why portions of it should be withheld from Dekraai, the Court should view

17 those arguments with skepticism. Even SH Log entries which seem innocuous or not

18 particularly relevant to this litigation could prove to be vital to ensuring Dekraai’s right to a

19 fair trial after careful study and investigation by Dekraai. For example, at the January 2013

20 discovery hearing Dekraai had no idea who Moriel was, and his informant work at that

21 time seemed irrelevant to this litigation. The only reason Dekraai received any of Moriel’s

22 notes and informant work is because Moriel happened to be included in the discovery from

23 cases involving Perez’s informant work. Yet Dekraai’s Investigation into Moriel’s

24 Informant work led to some of the most powerful evidence of the constitutional infirmities

25 of the jailhouse Informant program. Simply put, in light of the inexplicable failure of the

26 OCDA and OCSD to disclose the existence of the SH Log until now, and the issues raised

27 by both that failure and the relevance of the contents of the SH Log to the litigation in this

28 case, the OCDA and OCSD have a heavy burden to carry to prevent Dekraai from

14


1 receiving the SF1 Log in its entirety.

2 IL THE SH LOG IS DISCOVERABLE UNDER SECTION 1054 ANDDISCOVERY OF THE SH LOG CAN ONLY BE RESTRICTED OR

3 DENIED BASED UPON A SHOWING OF GOOD CAUSE ASDEFINED IN SECTION 1054.7.

4Before addressing the individual privilege claims made by the OCDA and OCSD, it

6is important to emphasize the nature of this proceeding. The OCDA has requested the in

camera hearing pursuant to section 1054.7. One of the purposes of section 1054 is to

8“provide that no discovery shall occur in criminal cases except as provided by this chapter,

other express statutory provisions, or as mandated by the Constitution of the United

10States.” (Pen. Code, § 1054, subd. (e).) In other words, if certain discovery is covered by

section 1054, then section 1054 is the exclusive statute for regulating its disclosure.

12(People v. Superior Court (Barrett,) (2000) 80 Cal.App.4th 1305, 1311.)

13Here the OCDA acknowledges the SH Log contains material that is covered by

14section 1054. Wagner’s declaration states he believes the SF1 Log contains material that

15impeaches the testimony of several OCSD witnesses, and perhaps other witnesses and

16evidence, such that he needs to “correct the record” by producing the SH Log to the Court

17and Dekraai. (Wagner Declaration, p. 9.) Wagner further believes the SH Log contains

18material that is also otherwise discoverable to the defense pursuant to Brady, and that is

19responsive to prior discovery orders made by this Court. (Ibid.) The disclosure of

20impeachment evidence of prosecution witnesses is required under Brady. (US. v. Bagley

21(1985) 473 U.S. 667, 676.) Section 1054 does not abrogate the prosecution’s Brady

22obligations. (Izazaga v. Superior Court (1991) 54 Cal.3d 356, 377-378.) And the Court’s

23previous discovery orders were made pursuant to section 1054. Thus, it is evident that

24based on Wagner’s description of the material in the SF1 Log, the OCDA is required to

disclose the SH Log to Dekraai.25

26The OCDA appears to acknowledge its obligation to disclose the SR Log, but seeks

27to restrict or deny the disclosure pursuant to section 1054.7. As relevant here, section

281054.7 requires the disclosure of material covered by section 1054 unless good cause is

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1 shown why a disclosure should be restricted or denied. (Pen. Code, § 1054.7.) The statute

2 permits a party to establish good cause at an in camera hearing. (Pen. Code, § 1054.7.)

3 But the statute also contains a restrictive defmition of what constitutes good cause. Good

4 cause “is limited to threats or possible danger to the safety of a victim or witness, possible

5 loss or destruction of evidence, or possible compromise of other investigations by law

6 enforcement.” (Pen. Code, § 1054.7, emphasis added.) Further, Dekraai is unaware of any

7 authority condoning the use of section 1054.7 to prevent a defendant from receiving

$ discovery the prosecution is required to provide him under Brady.

9 Turning to the limits of what constitutes good cause to restrict or deny disclosure of

10 the SH Log to Dekraai, the OCDA puts forth two justifications: (1) the release of the

11 names of the informants could jeopardize the safety of the informants or their families; and

12 (2) the release of the SH Log could jeopardize ongoing criminal investigations. Dekraai

13 will address these justifications separately.

14 A. The Safety of Informants.

15 The OCDA’s claim that informant information cannot be disclosed to Dekraai based

16 on the safety of the informants is not a new claim in this case. Dekraai does not intend to

17 minimize the danger that can be associated with disclosing informants, but an unsupported

18 claim of informant safety is not sufficient to eliminate the prosecution’s discovery

19 obligations. For example, early on in this case the OCDA claimed that Oscar Moriel’s

20 name should not be spoken in court because of safety concerns, even though Moriel had

21 testified in three cases as an informant and his identity was disclosed in discovery to

22 numerous other defendants.

23 Dekraai is skeptical of the OCDA’s latest claim of informant safety for several

24 reasons. First, the SH Log covers information from September 2008 to January 2013.

25 Thus, the identity of any informant in the SH Log is at best from information the informant

26 provided more than three years ago, and could be from as long as eight years ago. Unless

27 there are even more cases where the OCDA and/or the OCSD failed to disclose the use of

28 an informant, the identity of the informants in the SH Log should have already been

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1 disclosed.

2 But perhaps more importantly, the OCDA’s press release details the steps it plans to

3 take to “remedy legal issues.” (Exh. A.) Those steps include assigning an experienced

4 prosecutor to review the SH Log to identify all current and former defendants who are

5 identified in the SH Log. That prosecutor, who will be assisted by the Dekraai and

6 Wozniak prosecutors, will work with the trial prosecutor assigned to each defendant’s case

7 to determine whether those defendants received the information in the SH Log. Further,

8 the OCDA is analyzing the prior testimony of OCSD deputies to determine if the SH Log

9 substantially impeaches their testimony such that the OCDA must notify any defendant of

10 the impeachment material. And finally, “[i]n the very near future,” the OCDA will “be

11 determining and inquiring” why the SH Log and materials referenced in the SH Log were

12 not previously provided to the OCDA.

13 This is significant because when the Court determines whether the disclosure of an

14 informant’s identity to Dekraai raises safety concerns, whether or not the informant’s

15 identity has previously been disclosed is relevant. If an informant’s identity has been or

16 will be disclosed to the defendant on whom the informant provided information, how could

17 disclosing the informant’s identity to Dekraai create safety concerns? “[T[he state’s right to

18 preserving confidentiality must be balanced against the defendant’s right to due process and

19 a fair trial.” (People v. Lee (1985) 164 Cal.App.3d 830, 835.)

20 Dekraai respectfully requests the Court ask the OCDA the following questions in

21 connection with any claim the OCDA makes that the identity of an informant should be

22 restricted or denied pursuant to section 1054.7:12

23

________________________

24 12 for the proposed questions here and in Section IIB, Dekraai believes that most of25 the questions do not need to be asked in camera and should instead be asked in open court.

In Section hA, the answers to questions number 1, 3, 5, 6, 7, and 8 would not reveal any26 information that could jeopardize informant safety. The same is true for questions number

27 1, 2, and 6 in Section IIB. Further, in light of the Court’s previous fmdings about theveracity of the testimony of witnesses from the OCSD and OCDA, Dekraai respectfully

28 requests that the proposed questions be asked of witnesses who are under oath.

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1 1. When did the informant provide the information?

2 2. Where is the informant now?

3 3. Has the identity of the informant been provided to any defendant?

4 4. If the answer to # 3 is no, why?

5 5. Who is the experienced prosecutor who was assigned to review the SH Log in order

6 to determine whether any current or former defendants named in the SH Log

7 received the material from the SH Log the defendants are entitled to?

8 6. The press release announcing the assignment of the experienced prosecutor to

9 review the SH Log was issued on June 9, 2016. Has the experienced prosecutor

10 completed his or her review of the SH Log?

11 7. If the answer to # 6 is yes, how many defendants have been notified or will be

12 notified?

13 8. If the answer to # 6 is no, when does the OCDA anticipate the review will be

14 complete and when does the OCDA anticipate notifying the defendants?

15 9. Has the OCDA notified any defendant other than Dekraai and Wozniak of

16 impeachment material against the OCSD found in the SH Log?

17 10. Would issuing a protective order over the identity of the informant ameliorate any

18 safety concerns? If not, why?

19 B. Compromise of Ongoing Investigations.

20 The OCDA claims disclosure of the SH Log would compromise ongoing

21 investigations. Dekraai is also skeptical of this claim. Once again, the SH Log contains

22 entries written from September of 2008 through January of 2013. This means that at best

23 the information in the SH Log is more than three years old and could be up to eight years

24 old. Are there really ongoing investigations based on information that was provided

25 between three and eight years ago?

26 If there are actually ongoing investigations based on information in the SH Log, a

27 claim of privilege based on an ongoing investigation does not last in perpetuity. (County of

28 Orange v. Superior Court (Wu) (2000) 79 Cal.App.4th 759, 768.) When a trial court

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1 determines there has not been enough progress made on an investigation to justify

2 protecting the investigative file, or if the court determines there is no reasonable probability

3 the case will be solved, the ongoing investigation privilege is no longer valid. (Ibid.)

4 Further, when the state claims a privilege based on an ongoing investigation, it must “show

5 there is a real possibility release of the information would allow the perpetrator to avoid

6 apprehension .... Afier all, there may be no risk in revealing information that reveals an

7 airtight case against petitioner.” (Michael F. v. Superior Court (2001) 92 Cal.App.4th

8 1036, 1047.)

9 Dekraai respectfully requests the Court ask the OCDA the following questions in

10 connection with any claim the OCDA makes that the disclosure of the SH Log could

11 jeopardize an ongoing investigation:

12 1. When did the informant provide the information?

13 2. Is there still an ongoing investigation based on that information?

14 3. If so, what is the current status of the investigation? Who is the assigned law

15 enforcement agency and lead investigator? When was the last time a law

16 enforcement agency worked on the investigation?

17 4. Is there is a suspect in the investigation? Has he or she been interviewed or

18 arrested?

19 5. Have any other witnesses been interviewed as part of the investigation?

20 6. Has the statute of limitations expired for the crime or crimes that are being

21 investigated?

22 7. How would releasing the content of the SH Log jeopardize the investigation?

23 8. Would issuing a protective order over the information in the SH Log ameliorate

24 concerns about jeopardizing the ongoing investigation? If not, why?

25

26

27

28

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1 III. THE OCSD’S PRIVILEGE CLAIMS.

2 A. Evidence Code Section 1040.

3 Evidence Code section 1040, the privilege for official information, creates a

4 privilege for “information acquired in confidence by a public employee in the course of his

5 or her duty and not open, or officially disclosed, to the public prior to the time the claim of

6 privilege is made.” (Evid. Code, § 1040, subd. (a).) As relevant here, the privilege can be

7 asserted when “[d]isclosure of the information is against the public interest because there is

8 a necessity for preserving the confidentiality of the information that outweighs the

9 necessity for disclosure in the interest ofjustice.” (Evid. Code, § 1040, subd. (b)(2).) The

10 official information privilege is similar to the ongoing investigation claim addressed by

11 Dekraai in Section 113. Thus, Dekraai incorporates by reference the points made in that

12 section, and respectfully requests the Court ask the OCSD the same questions as the

13 OCDA in response to the OCSD’s Evidence Code section 1040 claims.

14 Additionally, based on the OCSD’s claim that it is reviewing the SH Log to see if

15 there is any information in it responsive to current and prior subpoenas served on the

16 OCSD in pending criminal cases, Dekraai respectfully requests the Court ask the OCSD if

17 any other defendant has been notified of or received information from the SH Log. If the

18 answer to the question is no, why? If no defendants have been notified because the OCSD

19 is not yet done with its review of the SH Log (remembering the department claims to have

20 been made aware of the SH Log in March of 2016), when does the OCSD expect to have

21 completed its review of the SH Log for that purpose?

22 Furthermore, the Court of Appeal recently discussed what a trial court should do in

23 response to a claim of the official information privilege in In re Marcos B. (2013) 214

24 Cal.App.4th 299. The party claiming the privilege has the burden of showing that the

25 evidence which it seeks to suppress is within the terms of the statute. (Id. at p. 308.) When

26 the state seeks to withhold information from a criminal defendant, “the stakes are

27 particularly high;” thus the court must ensure the process of evaluating the state’s claim of

28 privilege affords the defendant due process. (Ibid.) As a result, an in camera hearing

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1 shared only by the court and the state “is far too constricted to permit an enlightened

2 determination. [Citation.]” (Ibid.) Instead, the first step is for the defendant to make a

3 prima facie case for disclosure. (Ibid.) If the defendant does so, the court should proceed

4 under Evidence Code section 915 and conduct an in camera hearing with the party

5 claiming the privilege and permit the defendant to submit questions to be asked at the

6 hearing. (Ibid.) This in camera hearing is a preliminary inquiry into whether the privilege

7 should be upheld. (Thid.) If the state succeeds in camera, the adversary process should be

$ used to probe the information’s relevance to the defense, explore the availability of other

9 alternatives, and if necessary, hear testimony voir dire. (Ibid.) Moreover, if the claim of

10 privilege is upheld, the court “shall make such order or finding of fact adverse to the public

11 entity bringing the proceeding as is required by law upon any issue in the proceeding to

12 which the privileged information is material.” (Id. at p. 312, quoting Evid. Code, § 1042,

13 subd. (a).)

14 Dekraai has already made a prima facie case for disclosure of the SH Log. In fact,

15 the OCDA made that showing for him in its brief and declaration. Thus, assuming the

16 official information privilege applies to records the OCSD claims are not official OCSD

17 records, the OCSD has the burden to demonstrate that the need for keeping the information

1$ in the SH Log confidential outweighs Dekraai’s right to due process and a fair trial. (See

19 Comment -- Assembly Committee on Judiciary, Evid. Code § 1040.) And if the OCSD

20 makes such a showing, the Court must make an order or fmding of fact adverse to the

21 OCSD.

22 B. Evidence Code Section 1041

23 Evidence Code section 1041 creates a privilege for the identity of informants. Like

24 the official information privilege, a trial court faced with the invocation of this privilege

25 must determine whether the need to protect the identity of an informant is outweighed by

26 the defendant’s right to due process and a fair trial. (Evid. Code, § 1041, subd. (a)(2).) The

27 informant identity privilege is similar to the informant safety claim addressed by Dekraai

28 in Section hA. Thus, Dekraai incorporates by reference the points made in that section,

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1 and respectfully requests the Court ask the OCSD the same questions as the OCDA in

2 response to the OCSD’s Evidence Code section 1041 claims. Furthermore, by its express

3 terms, the Evidence Code section 1041 privilege only applies to the identity of the

4 informant, not the content of his or her information. (Evid. Code, § 1041, subd. (a).)

5 C. Penal Code section 13300.

6 Dekraai is mystified by the OCSD’s privilege claim with respect to Penal Code

7 section 13300. To begin with, section 13300 contains fourteen subdivisions ((a)-(n)) and

8 takes up almost three pages of defense counsel’s copy of the Penal Code. OCSD does not

9 indicate what specific portion of section 13300 is the basis of its claim, so Dekraai has no

10 idea what privilege claim the OCSD is making within section 13300. But more

11 importantly, the statute is nothing more than the definition of “local summary criminal

12 history information” and who may have access to it. In fact, the definition of “local

13 summary criminal history information” reveals section 13300 appears to establish what is

14 commonly known as a “RAP sheet.” (Pen. Code, § 13300, subds. (a)(l) & (a)(2).)

15 Moreover, even if the statute somehow creates a privilege, the privilege plainly does

16 not apply to the SH Log. Subdivision (a)( 1) defines local summary criminal history

17 information as “the master record of information complied by any local criminal justice

18 agency ....“ (Pen. Code, § 13300, subd. (a)(l), italics added.) The OCSD has claimed that

19 the SH Log is not an official OCSD record, and is not maintained in a department file or

20 database that the custodian of records would customarily review prior to responding to

21 subpoena and discovery requests. (Monteleone Declaration, pp. 2-3.) If the SH Log is not

22 an official OCSD record, nor kept in a database the custodian of records would look in,

23 how can it be considered a “master record of information”?

24 Further, based on Wagner’s description of the SH Log, the statute reveals the log is

25 not covered by section 13300. Subdivision (a)(2) states that local summary criminal

26 history information “does not refer to records and data compiled by criminal justice

27 agencies other than that local agency, nor does it refer to ... investigations conducted by, or

28 records of intelligence information or security procedures of, the local agency.” (Pen.

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1 Code, § 13300, subd. (a)(2).) According to the OCDA and the OCSD, the SH Log is

2 replete with law enforcement investigations and its release would jeopardize public safety,

3 both inside and out ofthe jail. If that is true, than section 13300 does not apply to the SH

4 Log.

5 finally, the statute also says that included among the people who are authorized to

6 receive local summary criminal history information is a “public defender or attorney of

7 record when representing a person in a criminal case, ... and when authorized access by

8 statutory or decisional law.” (Pen. Code, § 13300, subd. (b)(9).) Wagner’s declaration

9 states the SH Log contains material that impeaches witnesses in the case, is discoverable

10 under Brady, and is responsive to previous discovery orders by this Court Brady is a

11 decisional law which requires disclosure to a defendant, and the Court’s previous discovery

12 orders were made pursuant to section 1054. Thus, if somehow the SH Log is covered by

13 section 13300, the statute itself provides for its disclosure to Dekraai. Consequently, the

14 OCSD’s privilege claim under section 13300 is not well taken.

15 D. Constitutional Right to Privacy

16 The final privilege claim put forth by the OCSD is based on the constitutional right

17 to privacy. But rather than address how the constitutional right to privacy applies to

18 individuals mentioned in a SH Log that the OCSD claims is not an official OCSD record,

19 in a log that was viewed at a minimum by every OCSD Special Handling deputy who made

20 an entry in it, members of the OCDA, and the Attorney General, the department puts forth

21 arguments supported by citations to cases that have nothing to do with the issue in the case

22 at bar. For example, the first case cited by the OCSD in this section of its brief is Hill v.

23 National Collegiate Athletic Assn. (1994) 7 Cal.4th 1. In Hill, university athletes sought an

24 injunction against the NCAA, challenging the organization’s requirement that college

25 students who wished to participate in NCAA sports submit to random urine tests for drugs.

26 The athletes claimed the program violated their right to privacy under the California

27 Constitution. The California Supreme Court held that in order to establish a cause of

28 action based on the state constitutional right to privacy, the plaintiff must establish each of

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1 the following: “(1) a legally protected privacy interest; (2) a reasonable expectation of

2 privacy in the circumstances; and (3) conduct by defendant constituting a serious violation

3 of privacy.” (Id. at pp. 3 9-40.) The court found the athletes had a reasonable expectation

4 of privacy in submitting to urine testing and in the results of that testing, but also found that

5 based on the nature of participating in athletics their expectation of privacy was

6 diminished. (Id. at pp. 4 1-42.) The court ultimately held that the student athletes’

7 diminished expectation of privacy was outweighed by the NCAA’s legitimate objectives in

8 drug testing. (Id. at p. 9.) Significantly, the court also held that not every assertion of a

9 privacy interest must be overcome with a showing of a “compelling interest.” (Id. at pp.

10 34-35.)

11 Thus, if Hill has any application to the case at bar, it refutes the OCSD’s assertion

12 that the right to privacy can only be overcome by demonstrating a compelling need. The

13 other cases relied on by the OCSD are similarly unavailing. What is missing from the

14 OC$D is a supportable claim that anyone mentioned in the SH Log even has a reasonable

15 expectation of privacy. Based on Wagner’s description, the log contains entries made by

16 several OCSD Special Handling deputies about their use of various informants.

17 If the OCSD is claiming the deputies themselves have an expectation of privacy in

18 the SH Log, such a claim is dubious. At a minimum every deputy who made an entry

19 knew it would be read by other deputies. And that does not take into account that the

20 OCSD has already given the entire SH Log to the OCDA and the Attorney General without

21 asserting any privacy interest. If the OCSD is claiming the informants mentioned in the

22 log have an expectation of privacy, such a claim is also dubious. The informants are not

23 only providing information because they expect law enforcement to act on it, they are also

24 doing so because they want to receive a benefit. Additionally inmates have a diminished

25 expectation of privacy. (People v. King (2000) 82 Cal.App.4th 1363, 1374-1375.) Is the

26 OCSD claiming the inmates that the informants provided information on have an

27 expectation of privacy? This might be the most tenuous claim, as based on the OCSD’s

28 history of unlawfully withholding informant information, Dekraai expects those inmates

24


1 presently have no idea they are even mentioned in the SH Log. Is the OCSD claiming that

2 individuals who do not even know the SH Log exists have an expectation of privacy in the

3 log? It strains credulity to argue that Dekraai or other inmates in the SH Log cannot

4 receive relevant information from the log that because the OCSD is wishes to protect those

5 inmates’ privacy rights who unknowingly shared details of their cases with jailhouse

6 informants.

7 The OCSD has not and cannot establish that any individual mentioned in the SH

8 Log has a reasonable expectation of privacy in the log. And even if the OCSD could make

9 such a showing, it is outweighed by Dekraai’s right to due process and a fair trial.

10 CONCLUSION

11 “[S]ince the Govermnent which prosecutes an accused also has the duty to see that

12 justice is done, it is unconscionable to allow it to undertake prosecution and then invoke its

13 governmental privileges to deprive the accused of anything which might be material to his

14 defense.” (United States v. Reynolds (1953) 345 U.S. 1, 12.) Invoking governmental

15 privileges to deprive Dekraai of his right to a fair trial is exactly what the OCDA and

16 OCSD has done for years, and what they are again trying to do now. Dekraai respectfully

17 requests the Court provide him with the entire SH Log for the reasons discussed herein.

18

19 DATED: September 7, 2016 Respectfully submitted,

20SHARON PETROSINO

21 Public DefenderSETH BANK

22 Senior Deputy Pu lic Defender23

24 SCOTT SANDERS25 Assistant Public Defender

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Press Release Page 1 of4

ORANGE COUNTYDISTRICT ATIORNEY

PRESS RLSE

Stiin King SLhrodeI. t Inf of •S!1tfOmci: 4-5-r-4fl8(‘eN: 714-292-271X

TONY RACKAUCKAS,District Attorney

Ro\ I id ,S1oI ‘Xf)i1,)o

Office: 7I4-347-Mì5(‘cli: 7 I-32344X6

Case # 12ZF0137 (Wozniak)

12ZF0128 (Dekraai)

Date: June 9, 2016

OCDA TURNS OVER RECENTLY UNCOVERED OCSD SPECIAL HANDLING LOGTO 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 nonprodudion of documents

SANTA ANA, Calif. — The Orange County District Attorney (OCDA) today turned over to the court a completecopy 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 defensein the People v. Scott Dekraai. In May 2016, hearings in People v. Daniel Wozniakwere held in the HonorableJohn D. Conley’s courtroom to confirm that the defense is being given all the materials to which they areentitled, and portions of recently-uncovered set of jail records were produced to defendant Wozniak by theOCSD 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 OCSDmanagement and command staff previously knew nothing of the existence of a set of jail records called the SHLog described in court as a daily activity log of the jail’s special handling deputies. Correspondingly, the OCDAdid 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 thecourt temporarily seal the SH Log because it may contain privileged information. The other brief is a request for

http ://orangecountyda.org/civica!press/display.asp?layout=2&Entry=4834 8/23/20 16

Press Release Page 2 of 4

an in-camera hearing in order to turn over the SH Log to defense. The briefs were filed in Judge Goethals’ courtbecause the SH Log contains material that impeaches the testimony of several OCSD witnesses who testified atthe prior hearings of the Dekraai case. The OCDA is fulfilling its duty to correct the record by producing the SHLog 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 alsoproduce material from the SH Log to the Dekraaiand Wozniak defense, who the OCDA consulted with as well asDeputy Attorney General Theodore Cropley, appellate counsel for the California Attorney General (CAG). Bothhave indicated that in their respective opinions that the OCDA may submit the complete SH Log to the courtunder seal.

The next court date on this matter is tentatively set for July 8, 2016, at 9:00 a.m. in Department C-45, CentralJustice Center, Santa Ana.

How SH Log Came to Light

In February 2016, during a habeas corpus hearing in In re HeniyRodriguez(Case #98NF2206), notes fromOCSD Special Handling Deputy Robert Szewczyk came to light during his testimony. Shortly thereafter, theWozniakdefense subpoenaed OCSD for any notes written by special handling deputies. According to thetestimony of OCSD Sergeant Kristin Monteleone in the Wozniak case, while searching for any such notes, shelearned from OCSD Deputy Ben Garcia that special handling deputies had kept a log, which Monteleone referredto as the “Special Handling Log.” Monteleone testified that she had no prior knowledge of the SH Log’sexistence.

On May 3, 2016, OCSD produced 81 redacted pages of the SH Log to the Wozniak defense and the OCDA, whoin 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 themeeting on May 10, 2016, the OCSD turned over a full copy of the SH Log, at the request of the OCDA, which iscomprised 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 interactionswith other jail staff, police officers, and inmates including informers. The use of TRED records came to light inthe Dekraai case.

Based on the Jan. 23, 2013, court order in the Dekraai case, the OCDA made repeated requests to the OCSDtelephonically, 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 hadprovided information pertaining to a suspect and/or defendant in a criminal matter (including state andfederal investigations).

• Any and all discovery, including but not limited to reports, notes, writings, oral communications, andrecordings, pertaining to any and all cases in which Fernando Perez had offered to provide and/orprovided 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 communicationsbetween representatives of law enforcement (including but not limited to the OCDA, the OCSD, and theSeal Beach Police Department), and either Fernando Perez or his representative(s), relating to (a) theinstant matter, and/or (b) any and all other cases in which Fernando Perez had offered to provide or hasprovided 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 deputiesvariously 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

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self-styled with names such as “Operation Okie Doke.” There are informer names on almost every page as wellas numerous mentions of high-profile inmates and frequent confidential informer(CI) interaction with numerousinmates, including high-profile inmates. The SH Log also mentions outside agencies interacting with specialhandling deputies about inmates and their numerous inquiries about running “operations.” The “operations” thatare unfamiliar to the OCDA appears to be part of informal jail banter with insider references related to jailsecurity 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 aparticular sector, and they would often know each other. In exchange for their information, some informerswere given favors such as phone calls and visits. The SH Log contains references to extensive recordings inmultiple 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 openand closed criminal cases. At first glance, there is new material in the SH Logs that were central to earlierhearings in the Dekraai case. For example, Perez’s initial interview on June 14, 2010, was recorded and noteswere taken, both maintained by Garcia. Perez, who was in disciplinary isolation (DI), was moved by OCSDDeputy William Grover on Oct. 16, 2011, “from DI to Mod L,” and no further description was documented. It isnot clear from Grover’s entry whether Perez had been housed in DI, or was only present in DI for a short periodof time. Testimony and records introduced at prior hearings in this case showed that Oct. 16, 2011, was thesecond day that Perez and Dekraai were housed next to each other in Mod L, Sector 17. Additionally, the SHLog shows that Perez provided more information during his stay in Mod L from approximately September toDecember 2011 than is reflected in his previously-revealed “CI notes.” Production of the SH Log entries andrecordings 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 tobe 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 DCDA will also take the following action in order to remedy any legal issues from the newly uncovered SHLog to ensure any constitutional rights of a defendant are protected:

1. Dekraai and Wozniak prosecutors are analyzing the SH Log for the purpose of providing the defendantsall appropriate discovery.

2. An experienced prosecutor will be assigned to review the SH Log for the purpose of identifying all othercurrent and former criminal defendants who are identified in the SH Log. This prosecutor, working withthe trial prosecutor assigned to each identified defendant, will then determine whether each identifieddefendant received the material to which he/she is entitled.

3. This prosecutor will be assisted in his/her review of the SH Log by the Dekraaiand Wozniak prosecutors,who have already invested significant time in reviewing and analyzing the contents of the SH Log.

4. The SH Log is a Microsoft Word document making it searchable using the “keyword” search function, andit will aid in the identification of criminal defendants and informers.

s. The Dekraai prosecutors have identified additional materials, such as reports and recordings, which arereferenced 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.

6. In the very near future, the OCDA will be determining and inquiring why the SH Log and these othermaterials mentioned in the SH Log, were not previously provided to the OCDA in response to OCDA’sprior requests and the court’s prior discovery orders.

7. Dekraai prosecutors will conduct briefings of other OCDA prosecutors to alert them to the existence of theSH Log and educate them about the general content of the SH Log.

a. The OCDA is analyzing prior courtroom testimony of certain OCSD deputies and determining whether thecontent of the SH Log substantially impeaches their testimony such that the OCDA has a duty to notifyany criminal defendant of the impeachment material.

http://orangecountyda.org/civicalpress/display .asp?layout=2&Entry4834 8/23/2016


The two briefs titled, “SH Log — Application to Seal Record,” and, “SH Log — Motion to Regulate Disclosure,” maybe found on the OCDA website at www.orangecountyda.orq, by selecting the Reports tab under the Reportsdropdown menu.

Assistant District Attorney Dan Wagner of the Homicide Unit wrote the briefs. Wagner and Senior Deputy DistrictAttorney Scott Simmons of the Homicide Unit were both present in court today at the hearing.

###

http ://orangecountyda.org/civica/press/display.asp?layout=2&Entry=4834 8/23/2016

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1 SUPERIOR COURT OF CALIFORNIA

2 COUNTY OF ORANGE, CENTRAL JUSTICE CENTER

3 DEPARTMENT C35

4

5 PEOPLE OF THE STATE OF CALIFORNIA,

6 PLAINTIFF,

7 VS. )CASE NO. 06CF3677

8 GARRET AGUILAR, STEPHEN CARLSTROM,MIGUEL GUILLEN, JARED PETROVICH,

9 RAUL VILLAFANA,

10 DEFENDANTS.

11

12

13 HONORABLE JAMES A. STOTLER, JUDGE PRESIDING

14 REPORTER’S TRANSCRIPT

15 AUGUST 18, 2011

16

17

18 APPEARANCES OF COUNSEL:

19 FOR THE PEOPLE: EBRAHIM BAYTIEHKEITH BOGARDUS

20 DEPUTY DISTRICT ATTORNEYS

21

22

23

24

25 REPORTED BY:ANNAMARIE BARTOVICH, CSR #9894, RPR

26 OFFICIAL COURT REPORTER

2062

1 50 STIPULATED ON BEHALF OF THE PEOPLE.

2 THE COURT: SO STIPULATED, MR. MUNOZ?

3 MR. MUNOZ: YES.

4 THE COURT: MR. DAVIDSON?

5 MR. DAVIDSON: YES, YOUR HONOR.

6 THE COURT: MR. THIAGARAJAH?

7 MR. THIAGARAJAH: YES.

8 THE COURT: MR. BROADY?

9 MR. BROADY: YES.

10 THE COURT: AND, MR. CURRIER?

11 MR. CURRIER: STIPULATED, YOUR HONOR.

12 THE COURT: THAT STIPULATION IS LIKEWISE RECEIVED.

13 MR. BAYTIEH: WITH YOUR PERMISSION THE PEOPLE CALL

14 DEPUTY SETH TUNSTALL TO THE STAND PLEASE.

15 THE COURT: ALL RIGHT.

16 THE BAILIFF: STEP FORWARD, SIR, PLEASE. STAND

17 RIGHT HERE. PLEASE RAISE YOUR RIGHT HAND. FACE THE CLERK

18 TO BE SWORN.

19 THE CLERK: DO YOU SOLEMNLY STATE THAT THE

20 EVIDENCE YOU’RE ABOUT TO GIVE IN THE CASE NOW PENDING BEFORE

21 THIS COURT SHALL BE TRUTH, THE WHOLE TRUTH, AND NOTHING BUT

22 THE TRUTH SO HELP YOU GOD?

23 THE WITNESS: YES.

24 THE BAILIFF: STATE TO THE COURT YOUR FULL NAME

25 AND SPELL YOUR FULL NAME FOR THE RECORD.

26 THE WITNESS: YES. SETH, S—E-T-H, TUNSTALL,

2063

1 T—U—N—S—T—A—L—L.

2 SETH TUNSTALL,

3 CALLED AS A WITNESS ON BEHALF OF THE PEOPLE, HAVING BEEN

4 DULY ADMINISTERED THE OATH, WAS EXAMINED AND TESTIFIED AS

5 FOLLOWS:

6

7 DIRECT EXAMINATION

8

9 BY MR. BOGARDUS: Q GOOD MORNING, SIR.

10 A GOOD MORNING.

11 Q WHAT IS YOUR OCCUPATION?

12 A I’M CURRENTLY EMPLOYED AS A DEPUTY SHERIFF

13 FOR THE ORANGE COUNTY SHERIFF’S DEPARTMENT.

14 Q HOW LONG HAVE YOU BEEN A PEACE OFFICER?

15 A ALMOST 13 YEARS.

16 Q CAN YOU SHARE A LITTLE BIT WITH US ABOUT YOUR

17 BACKGROUND, TRAINING, AND EXPERIENCE, JUST BRIEFLY ABOUT

18 YOUR EDUCATIONAL BACKGROUND AND BECOMING A PEACE OFFICER?

19 A YES, EDUCATIONALLY I HAVE MY BACHELOR’S IN

20 BUSINESS ADMINISTRATION FROM THE UNIVERSITY OF LAVERNE.

21 HAVE MY MASTERS DEGREE IN CLINICAL PSYCHOLOGY FROM THE

22 CHICAGO SCHOOL OF PSYCHOLOGY OUT OF WESTW000. AND I WILL BE

23 FINISHED WITH MY DOCTORATE IN PSYCHOLOGY APPROXIMATELY APRIL

24 OF NEXT YEAR.

25 Q NOW AS A PEACE OFFICER, YOU WENT TO THE

26 ACADEMY. CORRECT?

2064

1 A THAT IS CORRECT.

2 Q AND YOU GOT TO WORK -- HAVE YOU BEEN WORKING

3 ALL YOUR CAREER AS A PEACE OFFICER WITH THE ORANGE COUNTY

4 SHERIFF’S DEPARTMENT?

5 A YES, I HAVE.

6 Q BY THE WAY, ARE YOU WORKING IN UNDERCOVER

7 CAPACITY RIGHT NOW?

8 A YES, I AM.

9 Q NOW AT SOME POINT IN TIME, WERE YOU ASSIGNED

10 AS A CLASSIFICATION DEPUTY AT THE THEO LACY FACILITY?


12 Q HOW LONG DID YOU WORK AS A CLASSIFICATION

13 DEPUTY AT THE THEO LACY FACILITY?

14 A I WORKED APPROXIMATELY A YEAR AND A HALF IN

15 CLASSIFICATION, WHICH DEALS WITH THE INTERVIEWING,

16 CLASSIFYING, HOUSING, AND QUESTIONING OF ANY INMATES WITHIN

17 THE COUNTY JAIL. AFTER THAT YEAR AND A HALF, I WAS IN THE

18 SPECIAL HANDLING DETAIL, WHICH IS THE GANG DETAIL FOR

19 APPROXIMATELY NINE YEARS.

20 Q IN TOTAL DID YOU WORK IN SOME TYPE OF A

21 CLASSIFICATION DETAIL DEALING WITH INMATES FOR ABOUT OVER

22 NINE YEARS AT THEO LACY. CORRECT?


24 Q WAS PART OF YOUR JOB IN THAT -- DURING THAT

25 NINE-, TEN—YEAR PERIOD OF TIME, REQUIRES YOU TO INTERVIEW

26 INMATES AND TALK TO THEM?

2065


2 Q CAN YOU APPROXIMATE FOR THE JURY

3 APPROXIMATELY HOW MANY INMATES HAVE YOU HAD AN OPPORTUNITY

4 TO INTERVIEW AND TALK TO DURING YOUR CAREER?

5 A ROUGHLY I WOULD ESTIMATE OVER 11,000.

6 Q DID YOU TALK TO THEM FOR PURPOSES OF

7 GATHERING INTELLIGENCE?

8 A YES.

9 Q DID YOU TALK TO THEM FOR PURPOSES OF

10 OBTAINING A WORKING KNOWLEDGE ABOUT STRUCTURE AND THE

11 SUBCULTURE OF INMATES WITHIN THE JAIL FACILITY?


13 Q DID YOU DEVELOP INFORMANTS WITHIN THE JAIL

14 FACILITY WHO WERE HOUSED AT YOUR JAIL DURING THE PERIOD THAT

15 YOU WERE WORKING?

16 A YES.

17 Q DOES THAT ENTAIL YOUR ABILITY TO TALK TO

18 THESE INFORMANTS AND OBTAIN INFORMATION FROM THEM RELATING

19 TO THE INNER WORKINGS OF DIFFERENT GROUPS WITHIN THE JAIL

20 FACILITY?

21 MR. THIAGARAJAH: OBJECTION. LEADING.

22 MR. BAYTIEH: IT’S PRELIMINARY, YOUR HONOR.

23 THE COURT: I’LL ALLOW IT. IT’S PRELIMINARY, BUT

24 GO AHEAD.

25 BY MR. BAYTIEH: Q DID YOU TALK TO THEM FOR THAT

26 PURPOSE?

2066

1 A YES.

2 Q DID YOU ALSO HAVE AN OPPORTUNITY TO MEET AND

3 TALK TO LAW ENFORCEMENT PERSONNEL SPECIFICALLY RELATING TO

4 ACTIVITIES AND CRIMINAL ACTIVITIES WITHIN AN INSTITUTIONAL

5 FACILITY, JAIL OR PRISON THROUGHOUT THE STATE OF CALIFORNIA?

6 A YES.

7 Q HAVE YOU MET WITH PEOPLE THAT WORK IN JAIL

8 FACILITIES, PRISON FACILITIES THROUGHOUT THE STATE OF

9 CALIFORNIA FOR THE PURPOSE OF GATHERING INFORMATION AND

10 OBTAINING KNOWLEDGE ABOUT THE INNER WORKINGS OF INMATES

11 WITHIN INSTITUTIONAL FACILITIES?

12 MR. THIAGARAJAH: OBJECTION. LEADING.

13 MR. MUNOZ: YOUR HONOR --

14 THE COURT: IT’S PRELIMINARY?

15 MR. BAYTIEH: CORRECT.

16 THE COURT: GO AHEAD.

17 MR. MUNOZ: YOUR HONOR, •I WOULD LIKE TO HAVE A

18 BRIEF SIDEBAR ON THIS.

19 THE COURT: PARDON ME?

20 MR. MUNOZ: I’D LIKE TO HAVE A BRIEF SIDEBAR.

21 THE COURT: ALL RIGHT. LET’S GO IN THE BACK REAL

22 QUICK.

23 (THE FOLLOWING PROCEEDINGS

24 WERE HELD IN CHAMBERS.)

25 THE COURT: ALL RIGHT. WE’RE IN CHAMBERS. ALL

26 PARTIES ARE PRESENT. THAT INCLUDES BOTH PROSECUTORS, ALL

2067

1 FIVE DEFENSE COUNSEL.

2 MR. MUNOZ.

3 MR. MUNOZ: YES, YOUR HONOR. I NOTED THAT DEPUTY

4 TUNSTALL WAS PUT ON THE WITNESS LIST TO BE CALLED. I WAS

5 UNDER THE IMPRESSION THAT HIS PRIMARY FOCUS WAS GOING TO BE

6 SOMETHING TO DO WITH ANOTHER INMATE BY THE NAME OF POUGH,

7 THAT THAT WAS -- I DON’T KNOW IF I’M PRONOUNCING THE NAME

8 RIGHT. IT’S P ——

9 MR. THIAGARAJAH: O-U-G-H.

10 MR. MUNOZ: IN HIS PROXIMITY TO BEING A CELLMATE

11 OF ONE OF THE DEFENDANTS BEFORE THE COURT. THEN IT WAS

12 REVEALED THAT HE WAS GOING TO GET INTO SOME EXTENT WHAT THE

13 CAR SYSTEM WAS. WHAT I AM HEARING IS ACTUALLY A FOUNDATION

14 THAT IS GOING TO BE RATHER EXTENSIVE ABOUT AN EXPERT

15 WITNESS.

16 AND MAYBE I’M REMISS, BUT I DO NOT HAVE

17 ANYTHING ABOUT THIS WITNESS’S BACKGROUND, HIS EDUCATION, OR

18 WHAT EXACTLY HE’S GOING TO BE TESTIFYING TO; AND I’M SAYING

19 MAYBE IT’S MY OVERSIGHT. IF IT IS MY OVERSIGHT, I WILL

20 ADMIT THAT OUT OF THE THOUSANDS OF PAGES I MAY HAVE

21 NEGLECTED TO READ THAT INFORMATION. BUT I JUST WANTED TO

22 STOP BEFORE WE GOT TOO FAR AFIELD. IF I DO HAVE THE

23 DISCOVERY, THEN I’M REMISS. I APOLOGIZE.

24 THE COURT: LET ME HEAR FROM THE PEOPLE.

25 MR. BAYTIEH: YOUR HONOR, I’M JUST LAYING -- I

26 TOLD COUNSEL I’M GOING TO CALL HIM AS AN EXPERT ABOUT

2068

1 CULTURE WITHIN JAIL. WE’VE BEEN HEARING -- I’M GOING TO

2 APOLOGIZE TO STEAL SOME OF YOUR SAYINGS: AS THE NIGHT

3 FOLLOWS THE DAY AND WHENEVER THERE IS ACTION, THERE IS

4 REACTION. AND I’VE BEEN TELLING COUNSEL FROM THE BEGINNING

5 WHEN THEY WANT TO TALK ABOUT THE CULTURE AND TRY TO PAINT IT

6 IN THEIR WAY, THE PEOPLE HAVE THE RIGHT TO CALL AN EXPERT

7 AND TRY TO PAINT IT AS THE WAY WE SEE IT, AS THE CORRECT

8 WAY.

9 MR. THIAGARAJAH WENT INTO YESTERDAY NUMBER 13

10 AND THE SIGNIFICANCE OF NUMBER 13. THAT’S AN ACTION.

11 THERE’S GOING TO BE A REACTION.

12 THE COURT: NUMBER 13, WHAT YOU DO YOU MEAN?

13 MR. THIAGARAJAH: WHEN LUIS PALACIOS WAS

14 TESTIFYING AND HE SAID THAT WAS ONE OF THE PUNISHMENTS THAT

15 THE PAISANOS USED.

16 THE COURT: RIGHT.

17 MR. 3AYTIEH: SO HE’S GOING TO TALK ABOUT HIS

18 BACKGROUND, AND HE’S GOING TO TALK IN GENERAL ABOUT THE CAR

19 CULTURE.

20 THE COURT: ABOUT THE CAR CULTURE?

21 MR. BAYTIEH: CORRECT.

22 THE COURT: AT THIS JAIL OR THROUGHOUT CALIFORNIA?

23 MR. BAYTIEH: AT THIS JAIL AND THROUGHOUT

24 CALIFORNIA. AND HE’S GOING TO TALK ABOUT THE SHOTCALLERS

25 AND THE FACT THAT THE SHOTCALLERS, GIVEN THAT POSITION

26 YESTERDAY, I THINK IT WAS MR. DAVIDSON OR MR. CURRIER TALKED

2069

1 ABOUT -- MR. CURRIER TALKED ABOUT A PARTY THAT THEY THROW

2 FOR SOMEBODY FOR GETTING TO BECOME A SHOTCALLER. THEY WANT

3 TO TALK ABOUT IT -— I THINK MR. CURRIER CALLED THEM “THESE

4 KIDS.”

5 YOU KNOW, HE’S GOING TO TALK ABOUT HOW THAT

6 COMES FROM, WHERE THAT COMES FROM, THE SIGNIFICANCE OF IT.

7 SO THAT’S WHERE THE PEOPLE ARE HEADING.

8 THE COURT: IS THERE ANY REPORT FROM TUNSTALL

9 REGARDING THE CAR SYSTEM WITHIN THE ORANGE COUNTY JAIL OR IN

10 THE STATE OF CALIFORNIA?

11 MR. BAYTIEH: NO.

12 THE COURT: OKAY. ALL RIGHT. THEN ANYTHING

13 FURTHER, MR. MUNOZ?

14 MR. MUNOZ: WELL, IT’S JUST, YOUR HONOR, I DON’T

15 KNOW WHERE WE’RE GOING HERE IN ANTICIPATION FOR OBJECTIONS.

16 AND CERTAINLY IF THE COURT IS GOING TO ALLOW THIS WITHOUT

17 ANY KIND OF PARAMETERS OR REPORTS OF WHERE THE PEOPLE INTEND

18 TO GO, THEN I THINK THAT ANYTHING HAVING TO DO WITH THE

19 BROADER JAIL SYSTEM OF THE STATE IS COMPLETELY OUT OF

20 BOUNDS. I DON’T KNOW WHERE THAT IS RELEVANT. WE’RE TALKING

21 ABOUT F BARRACKS AND A MINIMUM SECURITY WING OF THE JAIL.

22 AND THE ONLY REASON -- I DIDN’T WANT TO

23 INTERRUPT. I’D LIKE TO GET THROUGH TODAY, BUT I DON’T KNOW

24 WHERE WE’RE GOING TO GO WITH THIS. AND IF THERE WAS A

25 REPORT, THEN IT’S ON ME.

26 THE COURT: ALL RIGHT. ANYTHING ELSE?

2070

1 MR. DAVIDSON, DO YOU WANT TO ADD ANYTHING?

2 MR. DAVIDSON: YES. I WAS ALSO UNAWARE THAT HE

3 WAS GOING TO BE CALLED AS AN EXPERT WITNESS. WE DON’T HAVE

4 A CURRICULUM VITAE. WE DON’T HAVE ANY DISCOVERY ABOUT HIS

5 TRAINING, EDUCATION, OR EXPERIENCE. AND IF WE HAD THAT --

6 THE COURT: YOU HAVE THAT DISCOVERY?

7 MR. DAVIDSON: NO, WE DO NOT HAVE THAT DISCOVERY.

8 AND IF WE DID HAVE THAT DISCOVERY, I’D HAVE DONE SOME

9 RESEARCH INTO THIS FELLOW. AND I FEEL LIKE WE’RE AT A

10 DISADVANTAGE AND WE’RE PREJUDICED, THAT WE WILL NOT BE ABLE

11 TO APPROPRIATELY INVESTIGATE HIS OPINIONS.

12 THE COURT: OKAY. MR. THIAGARAJAH.

13 MR. THIAGARAJAH: YOUR HONOR, I WAS TOLD BY

14 MR. BAYTIEH THIS MORNING AS TO WHAT -- AS TO THE EXTENDED

15 ASPECTS OF TESTIMONY THAT MR. TUNSTALL WAS GOING TO GO INTO.

16 THE FIRST TIME I HEARD THAT HE WAS BEING USED AS AN EXPERT

17 WITNESS IS A COUPLE MINUTES AGO. WE RECEIVED —- I’M NOT AS

18 FAMILIAR WITH THE -- YOU KNOW, WITH TRIALS AND EVIDENCE AS

19 MOST OF THE GENTLEMEN IN THIS ROOM, BUT MY UNDERSTANDING OF

20 IT IS THAT, IF THE PEOPLE ARE GOING TO CALL AN EXPERT

21 WITNESS, THEY’D HAVE TO GIVE US SOME KIND OF NOTICE. THIS

22 CASE IS FIVE YEARS OLD. ADMITTEDLY I’VE ONLY BEEN ON IT

23 SINCE FEBRUARY.

24 THE COURT: BUT TUNSTALL IS ON THE WITNESS LIST?

25 MR. THIAGARAJAH: HE’S ON THE WITNESS LIST, BUT

26 NOT AS AN EXPERT, YOUR HONOR.

2071

1 MR. BAYTIEH: I’M SORRY -- I DON’T WANT TO

2 INTERRUPT YOU. I’LL LET YOU FINISH.

3 MR. THIAGARAJAH: SO, YOU KNOW, I WAS, YOU KNOW,

4 NEVER AFFORDED ANY OPPORTUNITY -- I’M ONLY SPEAKING ON

5 BEHALF OF MY CLIENT, BUT I’VE NEVER BEEN AFFORDED ANY

6 OPPORTUNITY TO, YOU KNOW, EXPLORE WHAT THIS INDIVIDUAL WOULD

7 HAVE SAID AS AN EXPERT WITNESS. IT NOW PUTS ME AT A

8 DISADVANTAGE IN TERMS OF YOU KNOW -— YOU KNOW, I’D HAVE TO

9 SCRAMBLE TO FIND A REBUTTAL EXPERT WITNESS IF NECESSARY IN

10 THE MIDDLE OF A TRIAL THAT HAS BEEN, YOU KNOW, WHERE WE’VE

11 HAD PLENTY OF TIME AND PREPARATION, YOU KNOW, PLENTY OF TIME

12 TO HAVE PROVIDED THIS NOTICE.

13 AND IN TERMS OF WHAT MR. BAYTIEH SAID ABOUT

14 ME OPENING THE DOOR, I THINK, YOUR HONOR, THAT THAT IS -- I

15 WOULDN’T FRAME IT IN THAT LIGHT. YOU KNOW, HE CAN’T —- YES,

16 THERE’S AN ACTION AND REACTION, BUT HE’S THE ONE THAT ASKED

17 MR. PALACIOS, “HEY, LISTEN, YOU KNOW, HOW DO YOU GET TAXED?

18 YOU KNOW, WHAT’S -- YOU KNOW, WHAT IS YOUR -- WHAT IS YOUR

19 IDEA OF TAXING?” AND THEN MR. PALACIOS IS THE ONE THAT SAYS

20 IT COULD BE 113 SQUATS. IT COULD BE 13 SECONDS. THEN WHEN

21 I ASKED QUESTIONS ABOUT THIS WITNESS, YOU KNOW, THAT DOESN’T

22 MEAN THAT HE NOW GETS TO OPEN THE DOOR COMPLETELY. THAT

23 WOULD BE RIDICULOUS. THERE WOULD BE NO SUCH THING AS A

24 DOOR.

25 SO, YOU KNOW, I NEVER BROUGHT UP ANY

26 INFORMATION OUTSIDE OF THE SCOPE OF HIS DIRECT. AND IF THIS

2072

1 WAS ALLOWED, IF HE GETS TO OPEN THE DOOR FULLY EVERY TIME HE

2 OPENS THE DOOR PARTIALLY, THEN, YOU KNOW, WHY HAVE

3 LIMITATIONS AT ALL. SO I THINK THAT I WOULD BE OBJECTING ON

4 BEHALF OF MR. CARLSTROM TO ANY EVIDENCE THAT’S BEING BROUGHT

5 OUT BY MR. TUNSTALL IN THE FORM OF EXPERT TESTIMONY AND/OR

6 IN THE FORM OF HIS KNOWLEDGE OF CAR HIERARCHY, WHETHER IT’S

7 IN F BARRACKS WEST OR ANYWHERE ELSE.

8 THE COURT: MR. BROADY.

9 MR. BROADY: I SUBMIT THE OBJECTION.

10 THE COURT: HOW ABOUT YOU, MR. CURRIER?

11 MR. CURRIER: YOUR HONOR, I JUST HAVE TWO MINOR

12 CONCERNS. ONE OF THEM IS THAT MY EXPERIENCE IS THAT

13 SOMETIMES WE BEGIN TO GET INTO ANECDOTAL PATTER FROM A

14 WITNESS Of THIS TYPE. YOU KNOW, I HAVE THAT CONCERN. AND

15 IN ADDITION HE’S TALKED ABOUT HAVING BEEN A SO—CALLED GANG

16 EXPERT.

17 THE COURT: GANG EXPERT.

18 MR. CURRIER: AND I’M CONCERNED NOW --

19 THE COURT: I SEE.

20 MR. CURRIER: -- WE’RE GOING TO START GETTING INTO

21 THE NORTHERN EME, THE SOUTHERN EME.

22 THE COURT: E-M—A?

23 MR. CURRIER: YES, SIR, EME, WHITE SUPREMACIST

24 GANGS, THE NAZI LOWRIDERS, ALL OF THAT KIND Of STUFF, WHICH

25 IS PREJUDICIAL AS IT CAN BE, I WOULD DARESAY. WE’RE NOT

26 TALKING ABOUT GANGS HERE, BUT YOU NEVER KNOW WITH THESE

2073

1 WITNESSES WHERE IT’S GOING.

2 THE COURT: YOUR RESPONSE?

3 MR. BAYTIEH: I’M GOING TO ASSUME THAT NONE OF THE

4 STUFF THAT THEY SAID IS INTENTIONAL AS FAR AS THEM NOT

5 HAVING NOTICE. MR. TUNSTALL HAS BEEN ON THE WITNESS LIST

6 FOR MONTHS AND MONTHS. I’VE TOLD EVERY DEFENSE ATTORNEY

7 THAT I’M GOING TO HAVE HIM TESTIFY IN GENERAL ABOUT THE CAR

8 STRUCTURE. MR. MUNOZ TOLD ME THAT HE HAD AN EXPERT TO

9 POTENTIALLY REBUT MINE, MR. DANIEL VASQUEZ. HE IS ON THE

10 WITNESS LIST. I ASKED HIM: “WHAT IS HE GOING TO TESTIFY

11 ABOUT?” HE GOES “POTENTIALLY ABOUT THE CAR STRUCTURE.”

12 THE FACT THAT HE WAS GOING TO CALL A WITNESS

13 TO TESTIFY ABOUT THE CAR STRUCTURE IS NOT A SURPRISE TO

14 ANYBODY. WHAT’S UNFORTUNATE IS THEY WANT TO PAINT THE

15 PICTURE THAT TAYLOR IS THE ONE THAT CREATED THAT ENVIRONMENT

16 IN THERE, THAT TAYLOR IS THE ONE THAT MADE THIS CAR

17 STRUCTURE. I THINK THE PEOPLE ARE ENTITLED TO SHOW THAT

18 THIS IS PREVALENT WITHIN THE JAIL SYSTEM THAT EXISTS

19 EVERYWHERE, AND IT’S NOT TAYLOR THAT’S CREATED IT.

20 MR. THIAGARAJAH: I’D STIPULATE TO THAT.

21 MR. BAYTIEH: OKAY.


23 MR. MUNOZ: YOUR HONOR, I NEED TO RESPOND TO

24 SOMETHING HERE.

25 THE COURT: OKAY.

26 MR. BAYTIER: CAN I JUST FINISH?

2074

1 MR. MUNOZ: I APOLOGIZE.

2 MR. BAYTIEH: THAT’S OKAY.


4 MR. BAYTIEH: I HAVE NO INTENTION OF GOING INTO

5 THE DISTINCTION BETWEEN THE NORTHERN EME AND SOUTHERN EME.

6 I SUSPECT I’M NOT GOING TO MENTION THAT. THE ONLY THING I’M

7 GOING TO MENTION IN RESPONSE TO WHAT MR. THIAGARAJAH OPENED

8 UP IS THE NUMBER 13 HAS A SIGNIFICANCE FOR A GROUP WITHIN

9 THE JAIL SYSTEM. I’M NOT GOING TO MENTION --

10 THE COURT: THE NUMBER 13, MEANING WHAT, LIKE 13

11 SECONDS ON THE WALL?

12 MR. BAYTIEH: RIGHT, RIGHT, 13 OR 113, THAT

13 SIGNIFICANCE. AND IT’S NOT GENERATED BY THE DEPUTIES.

14 THAT’S THE CONCERN THAT I HAVE.

15 THE COURT: WHAT IS THE NUMBER 13?

16 MR. BAYTIEH: STANDS FOR M, FOR MEXICAN MAFIA.

17 THE COURT: OKAY.

18 MR. THIAGARAJAH: SORRY --

19 MR. BAYTIEH: THAT’S MY INSTINCT OF WHERE I’M

20 GOING. I THINK IT’S —- WILL BE WRONG FROM OUR PERSPECTIVE

21 TO ALLOW THE DEFENSE TO PAINT THE PICTURE TO THE JURY THAT

22 THIS IS ALL THE MAKING OF TAYLOR AND CHAPLUK. THIS IS JUST

23 F WEST. THAT WAS SAID MULTIPLE TIMES YESTERDAY. THEY ASKED

24 AND THEY TRIED TO USE EVERY INMATE WE CALLED AS AN EXPERT.

25 I THINK WE’RE ALLOWED TO CALL SOMEBODY WHO HAS KNOWLEDGE,

26 CLEARLY HAS THE FOUNDATION TO GIVE THAT OPINION.

2075

THANK YOU, MR. MUNOZ.

THE COURT: MR. MUNOZ.

MR. MUNOZ: YES. FIRST OF ALL, I NEVER

ANYBODY —— AND I HAVE A LOT OF RESPECT FOR

I NEVER REPRESENTED THAT I HAD -— WAS BRINGING

THIS CASE TO REBUT AN EXPERT THAT THE PEOPLE

BE PROFFERING BECAUSE I DIDN’T KNOW IF THEY

HAVE AN EXPERT, NUMBER ONE.

THE PROBLEM OF TUNSTALL BEING ON THE

WITNESS LIST, YOUR HONOR, IS THAT HE DOES

A PARTICULAR NARROW TYPE OF MANNER IN THE

THE COURT: PARTICULAR NARROW --

MR. MUNOZ: TYPE OF MANNER IN THE CASE.

THE COURT: MANNER?

MR. MUNOZ: YES, MANNER. HE HAS A PARTICULAR ROLE

IN THE CASE INVOLVING A STATEMENT THAT IS GOING TO BE

ATTRIBUTABLE TO MR. AGUILAR —-

THE COURT: OKAY.

MR. MUNOZ: -— THROUGH ANOTHER INMATE. AND HOW

THEY WERE PUT IN A SEPARATE CELL AND TO LAY THE FOUNDATION

FOR THE POSSIBILITY OF THIS STATEMENT BEING SHARED IN AN

OPEN SETTING AND OVERHEARD BY THIS WITNESS.

SO HE DOES HAVE A PARTICULAR RELEVANCE AND

CONNECTION WITH THE EVIDENCE. SO, YOU KNOW, AND THE PEOPLE

HAVE BEEN VERY OPEN. AND WE HAVE BEEN VERY, VERY

REPRESENTED TO

MR. BAYTIEH.

AN EXPERT INTO

WERE GOING TO

WERE GOING TO

WITNESS —— THE

HAVE A ROLE IN

CASE.

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2076

1 PROFESSIONAL AND COLLEGIAL ABOUT SHARING INFORMATION BACK

2 AND FORTH. BUT WHAT I SENSE JUST IN THE QUESTIONS THAT WERE

3 BEING LAID OUT THERE IS THAT THIS THING COULD GET OUT OF

4 HAND. I DON’T KNOW WHERE IT’S GOING TO GO.

5 THE COURT: OKAY.

6 MR. BAYTIEH: I CAN TELL YOU IT’S NOT GOING TO GO

7 BEYOND WHERE I TOLD YOU IT’S GOING TO GO.

8 THE COURT: BEFORE I HEAR FROM YOU,

9 MR. THIAGARAJAH, GIVE ME A THUMBNAIL SKETCH ONE MORE TIME.

10 I HEARD WHAT YOU SAID. I UNDERSTOOD. BUT WHERE ARE YOU

11 GOING WITH THIS WITNESS? HOW FAR ARE YOU GOING TO GO?

12 MR. BAYTIEH: THAT THE CAR STRUCTURE IS PRESENT IN

13 EVERY BARRACKS IN ORANGE COUNTY JAIL AND EVERY JAIL IN EVERY

14 COUNTY IN THE STATE PRISON. IT’S BEEN IN EXISTENCE FOR 40,

15 50 YEARS, THAT DECISIONS MADE ABOUT WHO GETS TO BE THE

16 SHOTCALLER, NOT BY LAW ENFORCEMENT BUT BY THE HIERARCHIES OF

17 THIS GROUP THAT —— THAT HAS BEEN IN EXISTENCE, THAT WHEN

18 SOMEBODY BECOMES A SHOTCALLER, THAT’S HOW IT HAPPENED. IT’S

19 NOT LIKE LET’S HAVE A PARTY AND APPOINT SOMEBODY TO BECOME

20 SHOTCALLER. THAT’S THE EXTENT OF WHERE I’M GOING TO GO.

21 THE COURT: OKAY.

22 MR. BAYTIEH: I WAS -- I WAS GOING TO CLARIFY THAT

23 NUMBER 13 FOR ONE OF THOSE GROUPS HAS A SPECIFIC

24 SIGNIFICANCE THAT’S NOT GENERATED BY LAW ENFORCEMENT.

25 THE COURT: OKAY. MR. THIAGARAJAH.

26 MR. THIAGARAJAH: YOUR HONOR, IF THOSE ARE THE

2077

1 EXACT ISSUES HE’S GOING INTO -— I DON’T KNOW ABOUT THE REST

2 OF THE INDIVIDUALS —— BUT I’D STIPULATE TO ALL OF THAT STUFF

3 RIGHT NOW. MY FEAR IS HE’S GOING TO GET INTO OTHER AREAS

4 OF -- YOU KNOW, I UNDERSTAND THAT MR. BAYTIEH IS GOING TO

5 TRY TO DIRECT HIM, BUT EVEN IN JUST ONE OF MR. BAYTIEH’S

6 QUESTIONS ALONE IN A PRELIMINARY QUESTION HE ASKED HIM --

7 THE WITNESS: “HOW LONG HAVE YOU BEEN A CLASSIFICATION

8 DEPUTY?” THE ANSWER TO THAT SHOULD HAVE BEEN “ONE AND HALF

9 YEARS.” INSTEAD WHAT HIS RESPONSE WAS “I’VE BEEN A

10 CLASSIFICATION DEPUTY FOR ONE AND HALF YEARS. LET ME TELL

11 YOU ALL ABOUT WHAT CLASSIFICATION ENTAILS. AND THEN ON TOP

12 OF THAT I WAS NINE YEARS IN THE GANG DETAIL.”

13 50 AS MUCH AS I KNOW MR. BAYTIEH WILL TRY TO

14 LIMIT HIS VERY QUESTIONS IN A VERY SPECIFIC MANNER TO THE

15 SPECIFIC AREAS THAT HE WANTS TO COVER, THERE’S A REAL FEAR

16 THAT THIS PARTICULAR WITNESS IS GOING TO LAUNCH INTO OTHER

17 AREAS THAT -- THAT HAVE NOT BEEN AGREED UPON; AND, YOU KNOW,

18 IT’S JUST A VERY DANGEROUS SITUATION, YOUR HONOR.

19 SO, YOU KNOW, IF, YOU KNOW, MAYBE WHAT WE CAN

20 DO IS PUT THIS WITNESS ON HOLD FOR NOW. I’M SURE THAT WE’RE

21 ALL -- YOU KNOW, MAYBE WE CAN REACH A POSSIBLE STIPULATION

22 REGARDING THE AREAS THAT HE WANTS TO GET INTO. YOU KNOW, IF

23 NECESSARY, SINCE THIS WITNESS IS BEING, YOU KNOW -- THE

24 IDENTITY OF THE WITNESS IS NOT BEING THRUST UPON US AT THE

25 LAST MINUTE, BUT CERTAINLY THE AREA OF TESTIMONY THAT HE’S

26 GOING INTO IS BEING THRUST UPON US AT THE LAST MINUTE.

2078

1 MAYBE A 402 HEARING MIGHT BE NECESSARY TO PREDETERMINE

2 WHETHER OR NOT THIS IS EVEN ADMISSIBLE.

3 BUT I JUST THINK IT’S A VERY DANGEROUS ROAD

4 TO JUST THROW HIM UP ON THE WITNESS STAND AND SEE WHAT

5 HAPPENS.

6 THE COURT: IS IT SUBMITTED?

7 MR. MUNOZ: YES.

8 MR. BAYTIEH: YES.

9 MR. CURRIER: YES.

10 THE COURT: GO AHEAD, MR. DAVIDSON.

11 MR. DAVIDSON: WE’VE BEEN FIGHTING LIKE CATS AND

12 DOGS FOR WEEKS TO LIMIT WHAT COMES INTO THIS TRIAL, AND

13 WE’VE BEEN FIGHTING -- AND SO FAR IN A GENERALITY WHAT WE’VE

14 BEEN LIMITED TO IS TAYLOR, CHAPLUK, AND WHAT HAPPENED AS

15 CLOSE AS POSSIBLE TO OCTOBER 5TH, 2006. AND SO A LARGE

16 EXTENT IT WAS THE PEOPLE’S 402 MOTIONS AND THE RULINGS

17 THEREOF THAT BROUGHT US DOWN AND GOT TO THE CORE OF THAT

18 ISSUE. AND NOW WE’RE OPENING UP NOT -- NOT JUST WHAT

19 HAPPENED BETWEEN TAYLOR, CHAPLUK, F WEST ON OR ABOUT THAT

20 VERY NEAR TIME FRAME TO OCTOBER 5TH, NOW WE’RE TALKING ABOUT

21 NORTHERN CALIFORNIA AND THE LAST 40 YEARS.


23 MR. DAVIDSON: AND EVERY OTHER JAIL AND STATE

24 PRISON IN THE STATE, IF NOT THE COUNTRY.


26 MR. DAVIDSON: IT’S INAPPROPRIATE.

2079

1 THE COURT: IS IT SUBMITTED?

2 MR. BAYTIEH: YES.

3 MR. MUNOZ: YES, YOUR HONOR.

4 MR. CURRIER: YES, YOUR HONOR.

5 MR. BROADY: YES.

6 THE COURT: OBVIOUSLY THIS IS RELEVANT EVIDENCE.

7 THE ISSUES IN THIS CASE INVOLVE, AMONG OTHER THINGS, WHETHER

8 OR NOT THE SHERIFF’S DEPARTMENT OR CHAPLUK -- I SHOULD SAY

9 AND/OR CHAPLUK, TAYLOR, AND LE INSTITUTED A CAR SYSTEM,

10 ACCEPTED A CAR SYSTEM, WERE FACED WITH A CAR SYSTEM, AND

11 SIMPLY ADJUSTED TO IT, REACTED TO IT IN WHATEVER WAY THERE

12 IS. THAT’S VERY IMPORTANT. IT’S A VERY IMPORTANT ISSUE IN

13 THIS CASE. SO THIS EVIDENCE IS OBVIOUSLY RELEVANT.

14 FOR INSTANCE, IF THIS CAR SYSTEM IS ONLY IN

15 THE ORANGE COUNTY JAIL AND ONLY IN F BARRACKS, IT WOULD TEND

16 TO INDICATE THAT TAYLOR, LE, AND CHAPLUK WERE SOMEHOW

17 INVOLVED IN IT, THEY EITHER INSTITUTED IT OR SOMEHOW, I’LL

18 JUST SAY, WERE INVOLVED IN IT. IF IT IS IN OTHER BARRACKS

19 WITHIN —— THE JAIL MODULES INCLUDED AND IN OTHER JAILS, IT’S

20 A HORSE OF A DIFFERENT COLOR ALL TOGETHER. AND

21 CIRCUMSTANTIALLY IT WOULD IMPLY THAT IT’S.AN INMATE

22 STRUCTURE; THAT IS, INSTITUTED BY INMATES FOR WHATEVER

23 PURPOSE.

24 AND SO —— SO THE EVIDENCE IS OBVIOUSLY

25 RELEVANT IN A BIG WAY. AND IN TERMS OF LACK OF NOTICE,

26 TUNSTALL IS ON THE WITNESS LIST. THAT PART OF DISCOVERY HAS

2080

1 BEEN PROVIDED. HE HAS NO REPORT. THAT PART OF THE

2 DISCOVERY IS UNAVAILABLE; THAT IS, IT SIMPLY DOESN’T EXIST,

3 50 I’M GOING TO GO AHEAD AND LET HIM TESTIFY. AND YOU FOLKS

4 CAN OBJECT TO ANY PORTION OF HIS TESTIMONY THAT YOU THINK

5 GOES BEYOND WHAT MR. BAYTIEH HAS PROFFERED IN TERMS OF WHAT

6 HE INTENDS TO DO. AND I’LL DEAL WITH IT ON A ONE ——

7 QUESTION—BY—QUESTION BASIS. I’M GOING TO ALLOW THIS.

8 AND, FURTHERMORE, THIS IS GOING TO BE A LONG

9 TRIAL; AND IF ANYBODY NEEDS TO REBUT THIS TESTIMONY, YOU’LL

10 HAVE PLENTY OF TIME TO ACQUIRE AN EXPERT TO COME BACK AND

11 REBUT THIS. SO I’M SIMPLY GOING TO ALLOW THIS AT THIS

12 POINT.

13 AND, MR. BAYTIEH, YOU CAN PROCEED AND ELICIT

14 WHATEVER YOU FEEL YOU NEED TO ELICIT. I DO WANT TO ASK YOU

15 ONE THING.

16 MR. BAYTIEH: YES, SURE.

17 THE COURT: DID YOU INSTRUCT HIM NOT TO WRITE A

18 REPORT?

19 MR. BAYTIEH: NO, I DID NOT.

20 THE COURT: BECAUSE THAT’S A HORSE OF A DIFFERENT

21 COLOR.

22 MR. BAYTIEH: ABSOLUTELY. THE OTHER THING THAT I

23 WANT TO MENTION, JUST FOR COUNSELS, I TOLD THEM SPECIFICALLY

24 THAT CERTAIN THINGS THAT I DIDN’T WANT THEM TO GO INTO. AND

25 I WANT TO INVITE COUNSEL, AND IF THE COURT AGREES, THAT IF

26 WHEN THE COURT IS SATISFIED THAT SOMEBODY IS AN EXPERT,

2081

1 PARTIES ARE ALLOWED TO LEAD AN EXPERT. SO I KNOW I’VE BEEN

2 GETTING A LOT OF LEADING OBJECTIONS, AT LEAST THAT’S WHERE

3 I’M COMING FROM. I BELIEVE THE PEOPLE ARE ALLOWED, LIKE THE

4 DEFENSE IS ALLOWED TO CALL THEIR OWN EXPERT AND LEAD THEIR

5 EXPERT.

6 THE COURT: IT MAY BE IN THIS SITUATION PRETTY

7 CONTRADICTORY, BUT IT MAY SOUND SILLY, I WOULD APPRECIATE

8 YOU LEADING THE WITNESS SO YOU CAN CONFINE YOURSELF TO THE

9 AREAS THAT YOU INDICATED THAT YOU INTEND TO INQUIRE OF HERE

10 IN CHAMBERS.

11 MR. BAYTIEH: IT WOULD SATISFY THE CONCERNS THAT

12 MR. THIAGARAJAH HAS.

13 MR. THIAGARAJAH: IF HE’S LIMITING HIMSELF TO JUST

14 THOSE AREAS, I WILL NO LONGER OBJECT ON LEADING GROUNDS.


16 MR. MUNOZ: YOUR HONOR, FOR THE SAKE OF JUST

17 GATHERING OURSELVES, CAN WE TAKE OUR MORNING BREAK NOW AND

18 THEN RECONVENE?

19 THE COURT: AND ONE OTHER THING, DO YOU -— WOULD

20 YOU AGREE TO A STIPULATION REGARDING WHAT TUNSTALL IS GOING

21 TO TESTIFY TO, AND DO YOU THINK IT’S FEASIBLE HERE IN TERMS

22 OF THIS ISSUE OF THE CAR SYSTEM?

23 MR. BAYTIEH: I AM OPEN TO IT WITH THE

24 UNDERSTANDING THAT I WILL TYPE IT UP THAT -- I’LL GO INTO

25 THE AREA THAT I WANT TO GO INTO. WE’LL KEEP HIM SUBJECT TO

26 RECALL. I’LL TYPE UP THE STIPULATION. TUNSTALL, BASED ON

2082

1 HIS BACKGROUND AND EXPERIENCE WILL TESTIFY TO THE

2 FOUNDATION. IF IT’S STIPULATED, I’N OPEN TO THAT, SO IF YOU

3 WANT —— IF THAT WILL MAKE YOUR LIFE EASIER, I’LL GO INTO A

4 VERY BRIEF AREA, AND THEN I’LL GO THE STUFF HE WANTS TO

5 TELL. WE’LL KEEP HIM SUBJECT TO RECALL, AND WE WILL —— WE

6 WILL -— I’LL TYPE UP THE STIPULATION. IF THE DEFENSE IS

7 AGREEABLE WITH IT, WE’LL READ IT INTO THE RECORD. IF

8 THEY’RE NOT AGREEABLE, I’LL BRING HIM BACK.

9 THE COURT: THEN I SUGGEST -— I SEE SOME PROBLEMS

10 WITH THAT. I REALLY DO. AND WE ALL KNOW THE LAW REGARDING

11 STIPULATIONS; THAT IS, IF A STIPULATION REQUIRES THE PEOPLE

12 TO LOSE THE PERSUASIVE FORCE OF THEIR EVIDENCE, THE PEOPLE

13 DO NOT HAVE TO STIPULATE. AND IT MAY BE AN OVERSTATEMENT OF

14 THE LAW ON THAT.

15 I HOPE, IF YOU FOLKS CAN REACH A STIPULATION,

16 THAT YOU DO SO. I THINK WHAT WE OUGHT TO DO NOW IS CONFINE

17 MR. TUNSTALL TO THE AREAS OTHER THAN THE CAR SYSTEM IN -—

18 WELL ——

19 MR. THIAGARAJAH: SO TO BE CLEAR --

20 THE COURT: WHAT ARE YOU GOING TO ASK HIM?

21 MR. BAYTIEH: HERE’S WHAT I SUGGEST TO DO: GIVE

22 ME ABOUT LESS THAN FIVE MINUTES TO LAY OUT HIS FOUNDATION

23 ABOUT THE SUBJECT MATTER WE’RE GOING TO PUT IN THE

24 STIPULATION, AND THEN I’LL GO INTO THE SPECIFIC AREA I WANT

25 TO SAY THAT. AND I MEAN THAT FROM THE BOTTOM OF MY HEART,

26 EVERY DEFENSE ATTORNEY HAS BEEN MORE THAN PROFESSIONAL WITH

2083

1 US, WAY OVERBOARD IN BEING ACCOMMODATING. I KNOW THAT WE

2 HAVE A RIGHT TO SAY, “NO THANK YOU, JUDGE. WE WANT TO PUT A

3 WITNESS ON,” BUT I THINK IT’S A GOOD IDEA. GIVE ME JUST

4 ABOUT FIVE MINUTES TO LAY MORE FOUNDATION ABOUT IT, THEN

5 I’LL GO INTO THE SPECIFICS OF HIS —— HIS —— JUST TO PUT TWO

6 INMATES NEXT TO EACH OTHER. AND THEN WE’LL EXCUSE HIM

7 SUBJECT TO RECALL. OVER THE WEEKEND I’LL TYPE UP THE

8 STIPULATION; HOPEFULLY, WE’LL BE ABLE TO REACH ONE.

9 THE COURT: AND PUT TWO INMATES NEXT TO EACH

10 OTHER?

11 MR. THIAGARAJAH: THAT’S THE SECOND ASPECT OF

12 WHAT -- WHY TUNSTALL IS ON THE WITNESS LIST IS BECAUSE HE

13 HAS INFORMATION THAT LINKS THE WITNESS SEAN POUGH WITH

14 AGUILAR.


16 MR. BAYTIEH: IT’S CUSTODIAN OF RECORDS. HE CAN

17 PUT THEM IN A CELL NEXT TO EACH OTHER.

18 THE BAILIFF: YOUR HONOR, CAN I SEND THEM ON A

19 BREAK?

20 THE COURT: WE’RE GOING TO DO THAT RIGHT NOW.

21 WE’RE GOING TO GO OUT AND TAKE THE BREAK RIGHT NOW, AND

22 WE’LL BE RIGHT OUT.

23 LIMIT YOUR TESTIMONY TO THE FOUNDATIONAL

24 ASPECT OF THAT. IF A STIPULATION OCCURS, FINE, WE’LL DO IT.

25 OTHERWISE, WE’LL PROCEED ACCORDINGLY.

26 MR. THIAGARAJAH: SORRY, YOUR HONOR, JUST FOR THE

2084

1 RECORD, JUST TO PRESERVE THE RECORD, I WANT TO PUT DOWN

2 THAT, YOU KNOW, WE ON BEHALF OF MR. CARLSTROM ARE OBJECTING

3 TO THIS EVIDENCE COMING IN AT ALL, BUT GIVEN THE FACT THAT

4 YOU’RE ALLOWING IT IN, WE’RE GOING TO BE, YOU KNOW,

5 CONSENTING TO A STIPULATION.

6 THE COURT: THAT’S UNDERSTOOD.

7 MR. THIAGARAJAH: THANK YOU, YOUR HONOR.

8 MR. BAYTIEH: THANK YOU, YOUR HONOR.

9 THE COURT: I’LL SEE YOU FOLKS OUT THERE. I’M

10 GOING TO TAKE THE BENCH AND JUST DECLARE A RECESS.

11 (THE FOLLOWING PROCEEDINGS WERE HELD IN

12 OPEN COURT IN THE PRESENCE OF THE JURY.)

13 THE COURT: WE’LL TAKE A RECESS. WE’RE DONE IN

14 CHAMBERS, BUT YOU FOLKS SAID: WHY DON’T YOU LET US GO? AND

15 IT SOUNDS LIKE A GOOD IDEA. I SHOULD HAVE LET YOU GO

16 EARLIER, BUT I CAN NEVER PREDICT HOW LONG THOSE THINGS ARE

17 GOING TO TAKE ME.

18 IT’S YOUR DUTY NOT TO CONVERSE AMONG

19 YOURSELVES OR WITH ANYONE ELSE ON ANY SUBJECT CONNECTED WITH

20 THE TRIAL, NOR ARE YOU TO FORM OR EXPRESS AN OPINION THEREON

21 UNTIL THE MATTER IS FINALLY SUBMITTED TO YOU. WE’LL GET YOU

22 BACK HERE IN ABOUT 15 MINUTES. HAVE A GOOD BREAK.

23 (RECESS TAKEN.)

24 (THE FOLLOWING PROCEEDINGS WERE HELD IN OPEN

25 COURT OUTSIDE OF THE PRESENCE OF THE JURY.)

26 THE COURT: ALL RIGHT. WE’RE IN OPEN COURT OUT OF

2085

1 THE PRESENCE OF THE JURY. ALL PARTIES ARE PRESENT.

2 THE COURT INTERPRETER ADVISED ME A FEW

3 MOMENTS AGO THAT SHE WAS ON THE THIRD FLOOR, AND NOT IN THE

4 AREA OF THE CAFETERIA, BUT ON THE THIRD FLOOR AND PROBABLY

5 IN THAT VICINITY, AND A JUROR TAPPED HER ON THE SHOULDER AND

6 SHE TURNED AROUND, I THINK RECOGNIZED THE PERSON AS A JUROR,

7 AND THE JUROR SAID, “EXCUSE ME, DO YOU HAVE A CARD KEY SO I

8 CAN GET INTO THE BACK HALLWAY?” AND SHE SAID “I CAN’T TALK

9 TO YOU.” AND THAT WAS IT.

10 YOU KNOW, FOR WHATEVER IT’S WORTH, I MIGHT

11 WANT TO TELL THE JURY: WHEN I SAY STAY AWAY FROM THE

12 PARTIES, I MEAN STAY AWAY FROM EVERYBODY AFFILIATED WITH THE

13 CASE.

14 MR. BAYTIEH: THAT’S FINE WITH THE PEOPLE. ASIDE

15 FROM THAT, THERE IS NO ADDITIONAL ACTION.

16 THE COURT: THERE’S A COUPLE PEOPLE ON THE JURY

17 THAT ARE SOMEHOW AFFILIATED WITH THE COUNTY, AND MAYBE SHE

18 WANTED TO GET A CARD KEY TO GO BACK AND SAY HELLO TO

19 SOMEBODY. I DON’T KNOW. BUT CERTAINLY THE COURT

20 INTERPRETER DID THE RIGHT THING AND SAID “I CAN’T TALK TO

21 YOU” AND JUST WALKED AWAY.

22 DO YOU WANT ME TO GIVE ANY FURTHER

23 ADMONITION?

24 MR. BAYTIEH: YOUR HONOR, FROM WHAT YOU’VE SAID TO

25 US, WE’RE SATISFIED OF NO ADDITIONAL ACTION, OTHER THAN THE

26 COURT REMINDING THEM NOT TO TALK TO ANYBODY ASSOCIATED WITH

2086

1 THE CASE AND MAYBE TELLING THEM THAT PEOPLE ASSOCIATED WITH

2 THE CASE INCLUDE, YOU KNOW, COURT INTERPRETERS AND COURT

3 REPORTERS AND BAILIFFS. WELL, MAYBE NOT BAILIFFS, SINCE

4 THEY HAVE TO TALK TO THE BAILIFF.

5 THE COURT: WITH THE EXCEPTION OF THE BAILIFFS.

6 THAT WOULD MAKE THE BAILIFF FEEL A BIT UNPOPULAR.

7 IS THAT OKAY WITH YOU, MR. MUNOZ?

8 MR. MUNOZ: IT IS.

9 THE COURT: INCLUDING THE COURT INTERPRETER.

10 MR. MUNOZ: YES.

11 THE COURT: MR. DAVIDSON?

12 MR. DAVIDSON: YES, YOUR HONOR.

13 THE COURT: MR. THIAGARAJAH?

14 MR. THIAGARAJAH: THAT SOUNDS GREAT, YOUR HONOR.

15 THE COURT: MR. BROADY?

16 MR. BROADY: YES.

17 THE COURT: AND, MR. CURRIER, IS THAT OKAY WITH

18 YOU?

19 MR. CURRIER: IT IS, YOUR HONOR. THANK YOU.

20 THE COURT: I’LL DO THAT AT THE NOON HOUR, JUST

21 BEFORE WE RECESS.

22 OKAY. ARE YOU READY TO GO?

23 (THE FOLLOWING PROCEEDINGS WERE HELD IN

24 OPEN COURT IN THE PRESENCE OF THE JURY.)

25 THE COURT: ALL RIGHT. MR. BAYTIEH, YOU HAD THE

26 WITNESS ON DIRECT.

2087

1 MR. BAYTIEH: THANK YOU VERY MUCH, YOUR HONOR.

2 Q GOOD MORNING AGAIN, SIR.

3 A GOOD MORNING.

4 Q AS PART OF THE DEVELOPING YOUR EXPERTISE IN

5 THIS AREA, DID YOU ALSO HAVE AN OPPORTUNITY ON MULTIPLE

6 OCCASIONS TO TESTIFY AS AN EXPERT IN A COURT OF LAW RELATING

7 TO THE TOPIC OF THE SUBCULTURE OF INMATES WITHIN JAIL AND

8 STATE PRISON FACILITIES?

9 A YES, I’VE TESTIFIED AS AN EXPERT IN NORTH

10 COURT, WEST COURT, CENTRAL COURT, AND THE FEDERAL GRAND

11 JURY.

12 Q DID YOU ALSO AS PART OF DEVELOPING YOUR

13 EXPERTISE IN THIS AREA HAVE A WORKING KNOWLEDGE OF THE PHONE

14 SYSTEMS AS THEY WORK IN THE ORANGE COUNTY JAIL SYSTEM?

15 A THAT’S CORRECT.

16 Q HOW MANY DIFFERENT JAILS DO WE HAVE,

17 FACILITIES IN ORANGE COUNTY?

18 A WE HAVE THREE MAIN FACILITIES. YOU HAVE

19 JAMES MUSICK FACILITY, WHICH IS DOWN IN LAKE FOREST, WHICH

20 IS MINIMUM LEVEL SECURITY. YOU HAVE RIGHT ACROSS THE STREET

21 CENTRAL JAIL, WHICH IS THE MAIN JAIL AND INTAKE RELEASE

22 CENTER, AND THEN YOU HAVE THEO LACY FACILITY IN ORANGE.

23 Q IS THERE A SPECIFIC SYSTEM THAT IS IN PLACE

24 RELATING TO THE PHONES THAT INMATES HAVE ACCESS TO WHERE YOU

25 HAVE THE ABILITY TO POTENTIALLY MONITOR, LISTEN, AND

26 TAPE—RECORD CONVERSATIONS BETWEEN INMATES AND PEOPLE ON THE

2088

1 OUTSIDE?

2 A YES.

3 Q NOW DOES THAI MEAN THAT YOU GET TO LISTEN AND

4 HEAR EVERY SINGLE PHONE CALL MADE OUT OF THE ORANGE COUNTY

5 JAIL?

6 A NO, WE DON’T HAVE ENOUGH TIME IN THE DAY.

7 Q ON AVERAGE HOW MANY INMATES DO WE HAVE, FOR

8 EXAMPLE, IN THE ORANGE COUNTY AND THEO LACY FACILITY ON AN

9 AVERAGE DAY?

10 A ON AVERAGE THE POPULATION CAN RANGE FROM 5800

11 UP TO 6500.

12 Q AND ON AVERAGE -- WHAT IS THE RATIO ON

13 AVERAGE, THE RATIO OF DEPUTY TO INMATE IN THE ORANGE COUNTY

14 JAIL SYSTEM?

15 A I BELIEVE THE RATIO IS ONE DEPUTY FOR EVERY

16 32 INMATES.

17 Q AND THAT’S GENERALLY SPEAKING. CORRECT?


19 Q YOU CAN HAVE PLACES WHERE YOU CAN HAVE A

20 RATIO THAT’S COMPLETELY DIFFERENT. CORRECT?

21 A YES. FOR EXAMPLE, IF YOU’RE INSIDE THE

22 BARRACKS, THERE’S ONLY THREE DEPUTIES INSIDE OF A BARRACKS

23 OF 292 INMATES.

24 Q AND IN DEVELOPING YOUR EXPERTISE HAVE YOU HAD

25 AN OPPORTUNITY TO MONITOR PHONE CALLS OF SPECIFIC INMATES

26 THAT YOU WERE INVESTIGATING?

2089

1 A YES.

2 Q IS THERE A MESSAGE THAT COMES ON THAT SAYS

3 SOMETHING TO THE EFFECT OF THIS PHONE CALL MAY BE MONITORED

4 OR RECORDED?


6 Q NOTWITHSTANDING THE PRESENCE OF THAT MESSAGE,

7 DID YOU HAVE ON MULTIPLE OCCASIONS THE ABILITY TO LISTEN TO

8 PHONE CALLS BETWEEN INMATES AND PEOPLE ON THE OUTSIDE OF THE

9 JAIL INVOLVING CRIMINAL ACTIVITIES?

10 A YES. IT SHOULD ALSO BE NOTED THAT INSIDE OF

11 THE —-

12 MR. THIAGARAJAH: OBJECTION. NONRESPONSIVE.

13 MR. CURRIER: NONRESPONSIVE.

14 THE COURT: “YES. IT SHOULD ALSO BE NOTED,” THAT

15 PHRASE AND EVERYTHING THEREAFTER IS STRICKEN. THE REST OF

16 THE ANSWER REMAINS. NEXT QUESTION.


18 Q ASIDE FROM THE MESSAGE THAT COMES ON THE

19 PHONE, IS THERE ALSO SIGNS THAT WERE PUT IN SOME AREAS BY

20 THE PHONES TELLING INMATES THAT THESE PHONE CALLS MAY BE

21 MONITORED OR RECORDED?


23 Q AND, AGAIN, NOT WITHSTANDING THAT, DID YOU

24 ALSO HAVE ON MANY OCCASIONS THE OPPORTUNITY TO LISTEN TO

25 PHONE CALLS WHERE THERE IS CALLS AND CRIMINAL ACTIVITIES

26 HAPPENING?

2090

1 A YES.

2 Q ARE YOU FAMILIAR WITH THE PROCESS OF A

3 THREE-WAY CALL?

4 A YES.

5 Q IS THAT THE PROCESS WHERE AN INMATE CAN

6 CONTACT —— CALL SOMEBODY COLLECT AND THAT PERSON WOULD

7 ACCEPT THAT COLLECT CALL AND MAKE A THREE-WAY BETWEEN THE

8 INMATE AND ANOTHER PERSON?

9 A IF YOU’D LIKE, I CAN EXPLAIN HOW.

10 Q NO, NO, NO.

11 A YES.

12 Q DOES THAT THEN ENTAIL THE INMATE TO TALK TO

13 SOMEBODY ON THE OUTSIDE, EVEN IF THAT PERSON ON THE OUTSIDE

14 DOES NOT ACCEPT COLLECT CALLS?


16 Q IN DEVELOPING YOUR EXPERTISE IN THIS FIELD,

17 DID YOU ALSO ENGAGE IN THE PROCESS WHERE YOU WILL HAVE THE

18 OPPORTUNITY TO READ LETTERS SENT BETWEEN INMATES ON THE

19 INSIDE AND INDIVIDUALS ON THE OUTSIDE?

20 A YES.

21 Q VICE VERSA, LETTERS FROM INDIVIDUALS ON THE

22 OUTSIDE AND INMATES ON THE INSIDE?


24 Q IS THERE A PROCESS THAT WILL ALLOW YOU, IF

25 THERE IS A SPECIFIC INMATE THAT YOU’RE INVESTIGATING, TO USE

26 THE MAIL COVER, WHICH MEANS THAT YOU HAVE THE ABILITY TO -—

2091

1 IF THEY SEND A LETTER OUT, BEFORE YOU MAIL IT OUT, TO COPY

2 IT. CORRECT?


4 Q IF THEY RECEIVE A LETTER, BEFORE IT’S

5 DELIVERED TO THEM, YOU COPY IT. CORRECT?

6 A CORRECT.

7 Q ARE YOU FAMILIAR WITH KITES?

8 A YES.

9 Q AM I CORRECT IN SAYING THAT KITES IS ONE OF

10 THE MECHANISMS THAT AN INMATE COULD USE TO RELAY A MESSAGE

11 TO ANOTHER INMATE WITHIN THE JAIL FACILITY?


13 Q FAIR FOR ME TO SAY THAT, WHEN AN INMATE WANTS

14 TO RELAY A MESSAGE IN WRITING TO ANOTHER INMATE BY WAY OF A

15 KITE, HE’S NOT GOING TO WRITE THE MESSAGE AND GIVE IT TO A

16 DEPUTY AND SAY, “HEY, CAN YOU PASS IT TO THAT OTHER GUY.

17 THAT’S NOT HOW IT GOES. CORRECT?


19 Q THERE’S A MECHANISM WHERE INMATES WITHIN

20 THEIR OWN STRUCTURE HAVE THE ABILITY TO RELAY MESSAGES

21 BETWEEN EACH OTHER. CORRECT?


23 Q IS IT ALSO FAIR FOR ME TO SAY THAT IN

24 DEVELOPING YOUR EXPERTISE IN THIS FIELD YOU TALKED TO

25 INDIVIDUALS YOU TOLD US ARE INFORMANTS. DID THAT INCLUDE

26 PEOPLE THAT HAD ACHIEVED A HIGHER LEVEL STATUS WITHIN A

2092

1 STRUCTURE OF A SPECIFIC GROUP?

2 A YES, I WOULD SAY PROBABLY THE HIGHEST LEVEL.

3 Q NOW IF AN INMATE IS HOUSED AT YOUR JAIL, IS

4 THERE A PROCESS WHERE THE THEO LACY FACILITY, THE JAIL THAT

5 YOU ARE WORKING AT, WILL KEEP TRACK OF WHERE A SPECIFIC

6 INMATE IS HOUSED?

7 A YES.

8 Q AND IS THAT PROCESS MADE IN THE REGULAR

9 COURSE OF BUSINESS FOR THE OPERATION OF THEO LACY FACILITY?

10 A YES, IT IS.

11 Q OKAY. IS IT MADE AT OR NEAR THE TIME THAT A

12 SPECIFIC INMATE IS HOUSED AT A SPECIFIC LOCATION?

13 A YES.

14 Q FOR EXAMPLE, IF I’M ONE OF YOUR INMATES AND

15 YOU ASSIGN ME TO A SPECIFIC BARRACK, WHEN I GO TO THAT

16 SPECIFIC BARRACK, YOU HAVE A RECORD THAT WILL SAY I WAS

17 PLACED IN THIS SPECIFIC BARRACKS. CORRECT?

18 A YES.

19 Q IF FOR WHATEVER REASON I’M SUBSEQUENTLY MOVED

20 TO A DIFFERENT BARRACKS, YOUR RECORD WILL REFLECT THAT AT OR

21 NEAR THE TIME THAT I AM MOVED. CORRECT?


23 Q YOU’RE FAMILIAR WITH THAT PROCESS. CORRECT?

24 A YES.

25 Q DID I ASK YOU IN PREPARATION FOR YOUR

26 TESTIMONY HERE TODAY, AMONG OTHER STUFF, TO REVIEW THE

2093

1 RECORD OF AN INMATE BY THE FIRST NAME OF SEAN, MIDDLE NAME

2 OF JAMES, LAST NAME OF POUGH, P-O-U—G—H, WITH A DATE OF

3 BIRTH OF APRIL 22ND —— WITH A BOOKING NUMBER OF 2328402?

4 A YES.

5 Q DID I ALSO ASK YOU TO CHECK THE RECORD, THE

6 HOUSING RECORD, OF AN INMATE BY THE NAME OF GARRET EUGENE

7 AGUILAR WITH A DATE OF BIRTH OF 11-23-1982 AND A BOOKING

8 NUMBER 2319345?

9 A YES.

10 Q AND DID I SPECIFICALLY ASK YOU TO REVIEW FROM

11 THE RECORD TO SEE IF DURING A SPECIFIC PERIOD OF TIME THEY

12 WERE HOUSED IN AN AREA WHERE THEY WERE NEXT TO EACH OTHER OR

13 CLOSE TO EACH OTHER?


15 Q ARE YOU FAMILIAR WITH A LOCATION CALLED “P”

16 AS IN PAUL AT THEO LACY?

17 A YES, IT IS A MODULE.

18 Q AND CAN YOU VERY BRIEFLY TELL THE JURY WHAT

19 TYPE OF MODULE IT IS? AND ALL THAT I NEED TO KNOW

20 PHYSICALLY IS HOW IT’S CONFIGURED PLEASE.

21 A OKAY. A MODULE CONTAINS SIX SECTORS. WITHIN

22 EACH SECTOR IS A TOTAL OF 32 BUNKS, 16 ABOVE ON THE SECOND

23 TIER AND 16 BELOW ON THE BOTTOM TIER. EACH ONE OF THOSE

24 SECTORS CONTAINS THE DAY ROOM, THE TELEPHONES, THE -— ANY

25 TYPE OF SHOWERING USAGE THAT THE INMATES NEED.

26 Q IN P, IS THAT A ONE-MAN CELL? TWO—MAN CELL?

2094

1 HOW WOULD YOU DESCRIBE IT?

2 A THEY’RE ALL CONFIGURED AS TWO-MAN CELLS, BUT

3 THERE’S TWO SEPARATE SECTORS THAT ARE SINGLE-MAN HOUSING;

4 MEANING, THOSE INMATES ARE CONSIDERED TOTAL SEPARATION, SO

5 THEY ARE IN A CELL BY THEMSELVES. AND THEY PROGRAM AND DO

6 EVERYTHING BY THEMSELVES. THEY HAVE NO OTHER INMATE

7 CONTACT.

8 Q WHEN YOU SAY “PROGRAM,” IS THAT TERMINOLOGY

9 FOR GOING TO DAY ROOM AND DOING DIFFERENT THINGS WITHIN THE

10 JAIL?

11 A YES.

12 Q ALL RIGHT. P44, IS THAT A ONE -- IS THAT A

13 LOCATION WHERE IT’S A ONE-MAN CELL; MEANING, ONE INDIVIDUAL

14 PER CELL OR MULTIPLE INDIVIDUALS PER CELL?

15 A THAT IS ONE INMATE PER CELL.

16 Q DID YOU DETERMINE THE HOUSING OF MR. POUGH IN

17 OCTOBER OF 2006, SPECIFICALLY STARTING FROM OCTOBER 6TH OF

18 2006 AT THE THEO LACY FACILITY?

19 A YES.

20 Q WHAT WAS THAT? WHERE WAS HE HOUSED?

21 A HE WAS IN MODULE P, SECTOR 44, CELL 7.

22 Q AND DID HE STAY AT THIS LOCATION UNTIL ABOUT

23 MARCH OF 2007?


25 Q HOW ABOUT MR. AGUILAR IN RELATIONSHIP TO P44,

26 DID YOU DETERMINE IF AT ANY MOMENT IN TIME HE WAS HOUSED IN

2095

1 THE AREA OF P44 AS WELL?

2 A YES.

3 Q AND WHAT WAS THAT DETERMINATION?

4 A HE WAS HOUSED IN MOD P, SECTOR 44, CELL 4,

5 WHICH IS UPSTAIRS.

6 Q AND DID THAT COVER THE TIME FROM OCTOBER 6TH,

7 2006, UNTIL OCTOBER 17TH, 2006?


9 Q FAIR FOR ME TO SAY THAT FROM OCTOBER 6TH,

10 2006, UNTIL OCTOBER 17TH, 2006, MR. AGUILAR AND MR. POUGH

11 WERE BOTH HOUSED IN P44?


13 MR. BAYTIEH: FOR NOW I APPRECIATE YOU ANSWERING

14 MY QUESTIONS. THANK YOU, SIR.

15 THANK YOU, YOUR HONOR. THAT’S ALL THE

16 QUESTIONS I HAVE AT THIS TIME.

17 THE COURT: ALL RIGHT. CROSS, MR. MUNOZ.

18 MR. MUNOZ: NO QUESTIONS.

19 THE COURT: MR. DAVIDSON.

20

21 CROSS EXAMINATION

22

23 BY MR. DAVIDSON: Q GOOD MORNING.

24 A GOOD MORNING.

25 Q SIR, YOU USED THE TERM “SUBCULTURE”?

26 A I DON’T BELIEVE I STATED THAT; BUT, YES, THAT

2096

1 WAS PART OF THE QUESTIONING.

2 Q WHAT IS YOUR UNDERSTANDING OF THE WORD

3 SUBCULTURE?

4 A MY INTERPRETATION OF THAT WOULD BE HOW THE

5 INMATES FUNCTION INSIDE OF A JAIL SYSTEM, WHICH IS INSIDE A

6 COMMUNITY.

7 Q IN A SURREPTITIOUS WAY?

8 A I DON’T UNDERSTAND THAT WORD.

9 Q IS SUBCULTURE SYNONYMOUS IN YOUR MIND WITH

10 SECRET?

11 A I WOULDN’T NECESSARILY SAY IT’S SECRET.

12 Q BUT IT’S SOMETHING THAT’S NOT AUTHORIZED BY

13 THE DEPUTIES IN THIS CASE, IF YOU WILL?


15 MR. DAVIDSON: THANK YOU. NOTHING FURTHER.

16 THE COURT: MR. THIAGARAJAH.

17 MR. THIAGARAJAH: VERY BRIEFLY.

18


20

21 BY MR. THIAGARAJAH: Q HOW ARE YOU, SIR?

22 A GOOD. HOW ARE YOU?

23 Q YOU INDICATED THAT THERE WAS A RATIO OF

24 APPROXIMATELY ONE DEPUTY TO EVERY 32 INMATES IN THE ORANGE

25 COUNTY JAIL SYSTEM. CORRECT?

26 A YES.

2097

1 Q WOULD IT BE FAIR TO SAY, SIR, THAT THERE ARE

2 OTHER INDIVIDUALS THAT ARE NOT DEPUTIES THAT ALSO WORK FOR

3 THE ORANGE COUNTY SHERIFF’S OFFICE?

4 A YES.

5 Q LIKE SUPPORT STAFF, ADMIN PEOPLE, THAT SORT

6 Of THING?

7 A YES, NOT IN A SWORN CAPABILITY.

8 Q OKAY. FANTASTIC. AND THEN YOU INDICATED

9 THAT SOMETIMES YOU REVIEWED CORRESPONDENCE THAT’S EITHER

10 SENT TO OR FROM INMATES. CORRECT?


12 Q OKAY. WOULD IT BE FAIR TO SAY, SIR, THAT THE

13 POLICY OF THE JAILS IS THAT ANY CORRESPONDENCE THAT’S BEING

14 SENT EITHER TO AN INMATE OR FROM AN INMATE IS OPENED UP TO

15 MAKE SURE THERE’S NO CONTRABAND OR ANYTHING LIKE THAT?

16 A IT’S MAINLY OPENED UP TO MAKE SURE THERE’S NO

17 CONTRABAND, NO POSSIBLE WEAPONS THAT WILL BE INSIDE, BUT THE

18 LETTER ITSELF MAY NOT BE THOROUGHLY INSPECTED OR READ.

19 Q BUT YOU SAID COPIES OF THOSE LETTERS ARE?

20 A NOT —- TO BE SPECIFIC, I BELIEVE YOU’RE

21 REFERRING TO MAIL COVERS. MAIL COVERS WILL BE AN OUTSIDE

22 AGENCY. SAY, FOR EXAMPLE, WESTMINSTER P.D. WOULD REQUEST A

23 MAIL COVER ON A PARTICULAR INMATE THAT THEY’RE

24 INVESTIGATING. THEY WOULD SUBMIT THAT REQUEST TO THE

25 CAPTAIN OF THE FACILITY. IT WILL BE AUTHORIZED. ONCE IT’S

26 AUTHORIZED, THEN ALL THAT MAIL THAT IS COMING IN OR GOING

2098

1 OUT FROM THAT INMATE WILL BE PHOTOCOPIED, PUT INTO A FOLDER,

2 AND THEN THAT DETECTIVE CAN COME PICK UP THOSE COPIES.

3 MR. THIAGARAJAH: PERFECT. THANK YOU SO MUCH,

4 SIR.

5 THE WITNESS: YOU’RE WELCOME.


7 MR. BROADY: NO QUESTIONS.

8 THE COURT: MR. CURRIER.

9 MR. CURRIER: THANK YOU, YOUR HONOR.

10


12

13 BY MR. CURRIER: Q DEPUTY TUNSTALL, YOU TOLD US

14 SOMETHING ABOUT THE AREA KNOWN AS P. OKAY?

15 A YES.

16 Q NOW WE’VE HEARD TESTIMONY THROUGHOUT THIS

17 TRIAL ABOUT BARRACKS. WOULD IT BE CORRECT TO SAY THAT THE P

18 MOD IS NOT A BARRACKS?


20 Q THE BARRACKS ARE WIDE OPEN AREAS WITH CELLS

21 THAT PEOPLE CAN MOVE BACK AND FORTH, IF PERMITTED, BETWEEN

22 THE VARIOUS CELLS. FAIR TO SAY?

23 A TO BE CORRECT, BARRACKS IS AN OPEN-DORM-STYLE

24 TYPE OF SURROUNDING WHERE INMATES CAN GO TO THE BATHROOM

25 FREELY If THEY NEED TO, CAN GET A DRINK OF WATER; WHERE A

26 CELL, THEY’RE PRETTY MUCH LOCKED DOWN 22 HOURS A DAY.

2099

1 Q OKAY. AND IN P, AT LEAST IN OCTOBER OF 2006,

2 AND GIVEN THAT THERE WERE A NUMBER OF SECTORS, AT LEAST ONE,

3 PERHAPS TWO, OF THE SECTORS WERE OF A TYPE WHERE, THOUGH,

4 THEY WERE TWO-MAN CELLS. THEY WERE NEVERTHELESS UTILIZED AS

5 SINGLE-MAN CELLS. IS THAT WHAT YOU TOLD US?

6 A YES, IT IS.

7 Q ALL RIGHT. AND DID YOU -- DID YOU MENTION ——

8 DID YOU TELL US WHY THEY WERE SINGLE—MAN UTILIZATION AS

9 OPPOSED TO TWO?

10 A YES, FOR TOTAL SEPARATION, TO ISOLATE THE

11 INMATE.

12 Q FROM OTHER INMATES?

13 A CORRECT.

14 Q ALL RIGHT. NOW WE’VE HEARD SOMETHING ABOUT

15 BANDING OF INMATES. YOU’RE FAMILIAR WITH THE TERN “WHITE

16 BAND”?

17 A YES, I AM.

18 Q THAT’S A SECURITY CLASSIFICATION THAT IS ON

19 THE LOW END, IS IT NOT?

20 A YES. IT IS CONSIDERED THE LOWEST END.

21 Q INDIVIDUALS WHO OCCUPIED P BACK IN 2006,

22 WOULD THEY HAVE BEEN WHITE BANDERS OR SOME OTHER BANDER?

23 A IN THOSE TWO PARTICULAR SECTORS THAT WERE

24 TOTAL SEP ——

25 Q THANK YOU.

26 A -- THEY WERE A MIXTURE. IF YOU’D LIKE, I CAN

2100

1 EXPAND ON THE BANDS.

2 Q WHAT ARE THE COLOR CHOICES THAT WE HAVE FOR

3 THAT SECTOR?

4 A IN THAT SECTOR YOU HAD WHITE BAND, WHICH IS

5 YOUR MINIMUM SECURITY. YOU HAD YELLOW BAND, WHICH IS MEDIUM

6 SECURITY. YOU HAD ORANGE BAND, WHICH IS CONSIDERED MAX

7 SECURED. YOU ALSO HAVE ADMINISTRATIVE SEGREGATED, WHICH IS

8 A RED BAND. THOSE INMATES NORMALLY FUNCTION BY THEMSELVES.

9 AND THEN YOU HAVE BLUE BANDS, WHICH IS PROTECTIVE CUSTODY.

10 BUT AT THE TIME WE DID NOT HAVE ANY OF THOSE IN THAT SECTOR.

11 Q OKAY. AND HOW WERE YOU ABLE TO TELL US

12 TODAY, SEVERAL YEARS LATER, ABOUT THE PRECISE COMPOSITION IN

13 P44?

14 A BECAUSE I WAS ONE OF THE MAIN DEPUTIES THAT

15 WAS HOUSING THE INMATES IN THOSE SECTORS.

16 Q OKAY. AND DID YOU WORK IN THE -- THE P MOD?

17 A I PERSONALLY DID NOT WORK THERE, EVEN THOUGH

18 I WOULD BE IN THERE ON A DAILY BASIS.

19 Q ALL RIGHT. THERE WERE INDIVIDUALS WHO WERE

20 ASSIGNED TO THE P MOD, SUCH AS I’LL USE THE TERM LOOSELY,

21 JAILERS?

22 A YES, HOUSING DEPUTIES.

23 Q HOUSING DEPUTIES, THANK YOU. AND THERE WERE

24 OTHER INDIVIDUALS WHO PERFORMED ANCILLARY SORT OF DUTIES,

25 SUCH AS YOURSELF?

26 A YES.

2101

1 Q IN TERMS OF THE CONFIGURATION OF 44, WAS

2 THERE, IN ADDITION TO THE SIX SECTORS YOU’VE TOLD US ABOUT,

3 SOME SORT OF A GUARD STATION?

4 A YES. THE GUARD STATION’S IN THE MIDDLE. THE

5 WAY YOU CAN LOOK AT IT, AS IF YOU HAVE A PIE AND YOU CUT IT

6 IN HALF. RIGHT IN THE MIDDLE OF THAT PIE WOULD BE WHERE THE

7 GUARD STATION IS, AND THEN THE SECTORS FAN OUT.

8 Q ARE THEY ONLY ON ONE SIDE, OR IS IT LIKE A

9 WAGON WHEEL?

10 A FOR THE MOST PART IT WOULD BE THE SECTORS ARE

11 ON ONE—HALF OF THE MOD. THE OTHER HALF OF THE MOD IS THE

12 OUTDOOR REC, THE VISITING AREA, THE MEDICAL AREA.

13 Q OKAY. AND SO THE DEPUTIES ASSIGNED TO THE

14 GUARD STATION IN P, WAS IT CONFIGURED IN A MANNER THAT THEY

15 COULD THEN LOOK PERHAPS OUT WINDOWS AND OBSERVE THE INMATES?

16 A YES.

17 Q OKAY. IS IT SIMILAR IN NATURE TO THE

18 BARRACKS SITUATION IN TERMS OF BEING ABLE TO LOOK OUT?

19 A YOU HAVE A BETTER VIEW OF ALL THE INMATES.

20 THAT’S HOW THE NODS WERE BUILT.

21 Q OKAY. HOW MANY INDIVIDUALS, IF YOU KNOW,

22 WERE ASSIGNED AS HOUSING DEPUTIES WITHIN THE P SECTOR ON A

23 GIVEN SHIFT OR THE P MOD WITHIN A GIVEN SHIFT?

24 A ON ANY GIVEN SHIFT THERE WAS APPROXIMATELY

25 FOUR DEPUTIES HOUSED WITHIN THAT MODULE.

26 Q AND WOULD THAT INCLUDE SWORN DEPUTIES AND

2102

1 SSO’S, OR WAS THERE A COMBINATION?

2 A ONLY SWORN DEPUTIES.

3 Q OKAY. NOW THE P SECTOR, AND IN SPECIFIC THE

4 AREA THAT YOU’VE DESCRIBED AS HAVING HOUSED AN INDIVIDUAL

5 NAMED BOUGH AND GARRET AGUILAR, ARE THE DOORS TO THE

6 INDIVIDUAL CELLS CONSTRUCTED OF METAL WITH SOME SORT OF A

7 GLASS OR PLEXIGLASS INSERT?

8 A YES, IT’S A THICK PLEXIGLASS.

9 Q AND THEN THERE’S SOME SORT OF OPENING IN THE

10 MIDDLE TO PASS THINGS THROUGH, PERHAPS LUNCH OR MAIL OR

11 WHATEVER?

12 A YES, THERE’S A HATCH ON THE DOOR.

13 Q AND HAVE YOU EVER GONE INS IDE THE -- ANY OF

14 THE INDIVIDUAL CELLS IN P44?

15 A YES, I HAVE.

16 Q HAVE YOU EVER GONE INSIDE THE LOWER LEVEL

17 CELLS?

18 A YES.

19 Q ANY OF THEM?

20 A YES, I HAVE.

21 Q WHAT ABOUT THE UPPER ONES?

22 A BOTH.

23 Q OKAY. AND WHEN THE INMATES ARE HOUSED IN P44

24 IN SPECIFIC, IS IT THE PRACTICE THAT THE DOOR TO EACH

25 INDIVIDUAL CELL IS CLOSED AND LOCKED?

26 A YES.

2103

1 Q NOW THE DOOR CAN BE OPENED IN A REMOTE

2 MANNER, CAN IT NOT?

3 A YES, IT CAN.

4 Q I’M SPEAKING OF INDIVIDUAL CELLS. RIGHT?


6 Q IS THAT SOME FUNCTION THAT OCCURS PERHAPS IN

7 THE GUARD STATION?

8 A YES.

9 Q ALL RIGHT. IS THERE A PARTICULAR SCHEDULE

10 THAT YOU WERE AWARE OF IN P44 BACK IN 2006 IN TERMS OF HOW

11 LONG IN A GIVEN DAY AN INDIVIDUAL IS CONFINED TO AN

12 INDIVIDUAL CELL IN P44?

13 A YES.

14 Q AND WHAT WAS THAT?

15 A THAT WOULD BE CONSIDERED THE DAY ROOM/OUTDOOR

16 REC SCHEDULE, WHICH WOULD BASICALLY ASSIGN A PARTICULAR

17 GROUP OR PARTICULAR INMATES TO THE DAY ROOM AT A CERTAIN

18 TIME AND THEN WOULD ALSO ASSIGN INMATES TO OUTDOOR REC.

19 Q OKAY. AND SO, BUT FOR BEING RELEASED TO

20 EITHER A DAY ROOM SITUATION OR AN OUTDOOR REC SITUATION,

21 WOULD IT BE CORRECT TO SAY THAT AN INDIVIDUAL IN P44 WOULD

22 REMAIN IN THEIR INDIVIDUAL CELL FOR THE BALANCE OF THE DAY?


24 Q WOULD THEY RECEIVE THEIR MEALS THERE?

25 A YES, THEY WOULD.

26 Q AND THOSE WOULD BE THROUGH THAT HATCH THAT

2104

1 YOU MENTIONED?

2 A YES.

3 Q OKAY. IF ONE WERE -- AND, BY THE WAY, HAVE

4 YOU EVER STOOD IN OR OCCUPIED IN SOME MANNER THE INTERIOR OF

5 THE GUARD STATION IN F?

6 A YES.

7 Q AND HAVE YOU EVER LOOKED OUT FROM THE GUARD

8 STATION TO P44?

9 A YES, I HAVE.

10 Q AND WHEN YOU LOOKED OUT DIRECTLY IN FRONT OF

11 YOU, WOULD IT BE CORRECT TO SAY THAT THERE WERE A NUMBER OF

12 TABLES THAT ARE FIXED TO THE GROUND WITH SOME SORT OF A

13 SEATING ARRANGEMENT ALSO FIXED TO THE GROUND?

14 A YES, THERE IS.

15 Q AND THAT IS FOR USE IN THE DAY ROOM PERIOD,

16 IS IT?


18 Q WOULD IT BE FURTHER CORRECT TO SAY THAT, FROM

19 YOUR POSITION WITHIN THE P44 GUARD STATION, THAT IF YOU LOOK

20 DIRECTLY FORWARD YOU’D SEE THE CELLS THAT YOU TOLD US ABOUT?

21 A YES.

22 Q AND THE CELLS ARE FASHIONED, ARE THEY NOT, IN

23 A TWO-STORY CONFIGURATION?

24 A YES, THEY ARE.

25 Q AND ON THE LOWER DECK, WOULD IT BE CORRECT TO

26 SAY, THAT THE CELLS WERE NUMBERED IN ODD NUMBERS 1, 3, 5, 7,

2105

1 IN THAT SORT OF A SITUATION?

2 A YES, I MADE A MISSTATEMENT BEFORE. THERE’S

3 NOT 16 CELLS ON THE BOTTOM. THERE’S EIGHT CELLS ON THE

4 BOTTOM. THEY’RE LABELED FROM 1 TO 15, AND THEN THERE’S

5 EIGHT CELLS ON THE TOP LABELED FROM 2 TO 16.

6 Q OKAY. AND YOUR TESTIMONY TO US WAS THAT —-

7 WELL, LET ME WITHDRAW THAT.

8 IS IT TRUE THAT THE CELLS THEN ARE CONFIGURED

9 OR GROUPED IN A MANNER THAT -- AND LET’S TALK JUST ABOUT THE

10 BOTTOM DECK. YOU HAVE 1, 3, 5, AND 7 AND THEN A SHOWERING

11 AREA. IS THAT CORRECT?

12 A YES.

13 Q AND THEN COMPLETING THE 9, 11, 13, 15?

14 A CORRECT.

15 Q AND THEN IT WOULD BE REPLICATED, WOULD IT

16 NOT, ON THE UPPER STORY, EXCEPT THAT IT WOULD BE IN EVEN

17 NUMBERS?


19 Q SO IF THE INDIVIDUAL KNOWN AS POUGH OCCUPIED

20 P7, WOULD THAT BE THE BOTTOM FLOOR, THE CLOSEST TO THE MID

21 LINE OF THE CELL STRUCTURE NEXT TO THE SHOWERS?


23 Q AND THAT WOULD BE ON THE LEFT SIDE?

24 A YES.

25 Q AS YOU LOOK AT IT FROM THE GUARD STATION?

26 A YES.

2106

1 Q OKAY. AND YOU MENTIONED THAT YOUR RECORDS

2 DEMONSTRATE THAT MR. GARRET AGUILAR OCCUPIED NUMBER 4. Is

3 THAT CORRECT?

4 A YES.

5 Q THAT WOULD BE ON THE UPPER DECK THEN, SECOND

6 TO THE LEFT-HAND END. WOULD THAT BE SO?


8 Q OKAY. NOW IF YOU ARE STANDING WITHIN A

9 LOCKED CELL ON THE BOTTOM ROW -— AND ANY OF THEM WILL DO -—

10 DO YOU -- ARE YOU ABLE TO LOOK ABOVE YOU IN SOME MANNER AND

11 SEE TO THE INTERIOR OF ANY OF THE CELLS IN THE UPPER DECK?

12 A NO, YOU ARE NOT.

13 Q THE FLOOR OF THE P SECTOR ON WHICH THE, LET’S

14 CALL IT, THE LOWER DECK OF CELLS IS SITUATED, DOES THAT

15 APPEAR TO BE A CONCRETE FLOOR?

16 A IT’S ALL CONCRETE.

17 Q AND THEN WOULD IT BE CORRECT TO SAY THAT THE

18 UPPER DECK OF CELLS, THE EVEN NUMBERED CELLS, ARE ALSO ON

19 SOME SORT OF A CONCRETE PLATFORM, IF YOU WILL?

20 A YES, THAT’S ALL ALSO CONCRETE.

21 MR. CURRIER: THANK YOU VERY MUCH, SIR.

22 THAT’S ALL, YOUR HONOR.

23 THE COURT: REDIRECT.


25

26 REDIRECT EXAMINATION

2107

1

2 BY MR. BAYTIEH: Q IF I’M AN INMATE HOUSED IN P44

3 BACK IN 2006 AND I AM IN ONE OF THE CELLS ON THE FIRST FLOOR

4 AND ONE OF THE INMATES WAS HOUSED ON THE SECOND FLOOR IS

5 HAVING HIS DAY ROOM AND HE’S OUTSIDE IN THE DAY ROOM IN

6 FRONT OF THE AREA WHERE MY CELL IS, DO I HAVE THE ABILITY TO

7 COMMUNICATE WITH HIM?

8 A YES, YOU DO.

9 Q CAN YOU TELL THE JURY HOW IS THAT HAPPENING?

10 A COMMONLY HOW THAT WILL HAPPEN IS YOU CAN TALK

11 THROUGH THE CRACKS IN THE DOOR, WHICH YOU CAN COMMUNICATE

12 VERBALLY. IF YOU WANT TO TRY TO DISGUISE IT, YOU CAN ALSO

13 USE SIGN LANGUAGE, WHICH SOME INMATES DO, OR YOU CAN PASS

14 PAPERWORK UNDERNEATH THE DOOR.

15 Q HAVE YOU IN YOUR EXPERTISE IN THAT AREA

16 BECOME AWARE OF THE FACT THAT THAT COMMUNICATION TAKES PLACE

17 ALL THE TIME BETWEEN INMATES INSIDE OF THEIR CELL AND

18 INMATES ON THE OUTSIDE IN P HAVING THEIR DAY ROOM?

19 MR. CURRIER: OBJECTION. VAGUE AS TO ALL THE

20 TIME.

21 MR. BAYTIEH: I’LL REPHRASE IT, YOUR HONOR. THANK

22 YOU.

23 THE COURT: OKAY. GO AHEAD.

24 BY MR. BAYTIEH: Q HAVE YOU TALKED TO INMATES

25 THAT TOLD YOU THAT THAT COMMUNICATION TAKES PLACE?

26 A YES.

2108

1 Q HAVE YOU SEEN IT TAKE PLACE?

2 A YES.

3 MR. BAYTIEH: THANK YOU, SIR.

4 THANK YOU, YOUR HONOR. THAT’S ALL THE

5 QUESTIONS I HAVE.

6 THE COURT: ALL RIGHT. THEN, MR. MUNOZ.

7 MR. MUNOZ: NO QUESTIONS.


9 MR. DAVIDSON: NO QUESTIONS, JUDGE.


11 MR. THIAGARAJAH: NO QUESTIONS, YOUR HONOR.



14 THE COURT: MR. CURRIER.

15 MR. CURRIER: I HAD THOUGHT I’D WAIT OVER HERE.

16 THE COURT: I THOUGHT YOU LEFT.

17 MR. BAYTIEH: WISHFUL THINKING.

18 THE COURT: ANYTHING FURTHER, MR. BAYTIEH?

19 MR. BAYTIEH: NO, YOUR HONOR. THANK YOU VERY

20 MUCH.

21 MR. CURRIER: YOUR HONOR, I BEG THE COURT’S

22 PARDON.

23 THE COURT: DO YOU HAVE SOME MORE?

24 MR. CURRIER: YES, SIR.


26 MR. CURRIER: THAT’S WHY I WAS HERE.

2109

1

2 RECROSS EXAMINATION

3

4 BY MR. CURRIER: Q I BELIEVE YOU TOLD US ON YOUR

5 DIRECT -- CORRECT ME IF I GOT THIS WRONG -- THAT THE

6 INDIVIDUALS, THOUGH THEY ARE HOUSED IN TWO-MAN CELLS, IN P44

7 THAT THEY WERE HOUSED INDIVIDUALLY FOR REASONS THAT ARE

8 IMPORTANT TO THE JAIL?

9 A YES, I CAN THINK OF ONLY ONE OR TWO TIMES

10 WHERE WE’VE HAD TWO INMATES IN THERE. THAT MIGHT HAVE BEEN

11 IF THEIR PARTICULAR GROUP WAS HAVING AN ISSUE BUT THEY WERE

12 COMPATIBLE, BUT FOR THE MOST PART EVERYONE WAS TOTAL SEP.

13 Q TOTAL SEP MEANS NO OTHER INMATE CONTACT.

14 RIGHT?

15 A YES, THAT’S HOW IT’S STRUCTURED.

16 Q OKAY. AND THE DEPUTIES THAT WORK IN THE

17 GUARD STATION, IS IT YOUR UNDERSTANDING THAT THEY’RE AWARE

18 THAT THIS IS A NO OTHER INMATE CONTACT SITUATION?

19 A MY UNDERSTANDING, YES.

20 Q OKAY. THAT’S HOW YOU WERE TRAINED, WASN’T

21 IT?

22 A YES, IT WAS.

23 Q ALL RIGHT. AND IN THE EVENT THAT AN INMATE

24 WHO WAS IN A DAY ROOM SITUATION LEFT HIS OWN TIER, WALKED TO

25 ANOTHER TIER, AND STARTED TALKING TO SOMEBODY THROUGH A

26 CRACK IN THE DOOR, WOULD THAT BE SOMETHING THAT WOULD

2110

1 ORDINARILY BE PROHIBITED BY THE RULES AS THEY EXISTED IN

2 P44?


4 Q AND YOU TOLD US THAT THE FOUR DEPUTIES --

5 THAT THE GUARD STATION WAS DESIGNED IN SUCH A FASHION TO

6 ENHANCE THE OPPORTUNITY TO SEE. IS THAT RIGHT?

7 A YES.

8 Q OKAY. WOULD THAT ALSO BE -- I BEG YOUR

9 PARDON. FORGIVE ME. AND IN LIKE MANNER, IF AN INDIVIDUAL

10 DEPUTY OR FORGIVE ME, SIR, AN INDIVIDUAL INMATE FROM ONE

11 TIER APPROACHED THE CELL OF AN INDIVIDUAL ON A DIFFERENT

12 TIER AND TRIED TO PASS A NOTE SOMEHOW THROUGH THIS LOCKED

13 DOOR, THAT WOULD ALSO BE SOMETHING THAT WOULD BE PROHIBITED

14 BY THE RULES WITHIN P44 AND SUBJECT TO THE DEPUTIES DOING

15 SOMETHING. FAIR TO SAY?


17 Q ALL RIGHT. DO YOU KNOW HOW LONG A DAY ROOM

18 PERIOD LASTED IN P44 BACK IN OCTOBER OF ‘06?

19 A I BELIEVE IT WAS AN HOUR PER INMATE.

20 Q AND IN ORDER FOR THE DAY ROOM TO OCCUR, WOULD

21 IT BE CORRECT TO SAY THAT -- WELL, FIRST OF ALL, DO YOU KNOW

22 IF THERE WAS TYPICALLY SOME SORT OF SCHEDULE IN PLACE, LIKE

23 CELL 2 GOES AT NOON, CELL 4 GOES AT 1:00, OR SOMETHING LIKE

24 THAT?

25 A YES, THERE WAS.

26 Q ALL RIGHT. AND WAS THE PRACTICE IN THOSE

2111

1 DAYS FOR THE DEPUTIES TO SORT OF, SAY, POP THE DOOR, IF YOU

2 WILL, ACTIVATE THE REMOTE DEVICE THAT OPENS THE DOOR FOR DAY

3 ROOM?


5 Q WOULD THERE BE COMMONLY SOME SORT OF AN

6 ANNOUNCEMENT MADE, OR WOULD THE DOOR POPPING SIMPLY BE A

7 SIGNAL: COME OUT. IT’S TIME FOR DAY ROOM?

8 A THERE WOULD NORMALLY BE A DEPUTY WHO PRESSES

9 THE MIKE INTO THAT CELL LETTING A PARTICULAR INMATE KNOW

10 THAT IT IS THEIR DAY ROOM: GET YOUR STUFF READY. YOU’RE

11 GOING TO BE COMING OUT.

12 Q OKAY. AND BASED ON YOUR KNOWLEDGE AND

13 INFORMATION, WERE THE RULES, IF YOU WILL, OF P44 MADE KNOWN

14 TO THE INMATES UPON THEIR ARRIVAL?

15 A THAT I’M AWARE OF, YES.

16 Q OKAY. AND SOME OF THE RULES WOULD BE --

17 WOULD IT INCLUDE THAT —- THAT THIS WAS A NO CONTACT WITH

18 OTHER INMATES SORT OF HOUSING. ISN’T THAT SO?

19 A I’M NOT SURE IF THAT WAS MADE MENTION TO THEM

20 OR NOT. I CAN’T BE -— I CAN’T TELL YOU FOR SURE.

21 Q OKAY. NEVERTHELESS, CONTACT WAS PROHIBITED

22 BY THE RULES AS THEY EXHIBITED IN TERMS OF HOW THE SHERIFF

23 VIEWED IT?

24 A YES.

25 MR. CURRIER: THANK YOU. THAT’S ALL.

26 THE COURT: ALL RIGHT. WITH THAT, ANY REDIRECT,

2112

1 MR. BAYTIEH?


3

4 FURTHER REDIRECT EXAMINATION

5

6 BY MR. BAYTIEH: Q THE DAY ROOM FOR THE UPPER

7 CELLS, WHERE IS THE DAY ROOM FOR THE UPPER CELLS IN P44?

8 A ON THE LOWER LEVEL.

9 Q SO IF YOU’RE IN THE UPPER CELL AND YOU GO TO

10 YOUR DAY ROOM, YOU HAVE TO COME DOWN TO THE FIRST LEVEL.

11 CORRECT?


13 MR. BAYTIEH: THANK YOU, YOUR HONOR. THAT’S ALL

14 THE QUESTIONS I HAVE.

15 THE COURT: JUST ONE SECOND.

16 THEN, MR. MUNOZ.

17 MR. MUNOZ: NO QUESTIONS, YOUR HONOR.


19 MR. DAVIDSON: NO QUESTIONS, JUDGE.


21 MR. THIAGARAJAH: NO QUESTIONS, YOUR HONOR.



24 THE COURT: AND, MR. CURRIER.

25 MR. CURRIER: THANK YOU, YOUR HONOR, ONE LAST

26 THING.

2113

1

2 FURTHER RECROSS EXAMINATION

3

4 BY MR. CURRIER: Q ANY ELEVATOR OR STAIRWELL THAT

5 PROVIDED ACCESS TO THE UPPER LEVEL?

6 A THERE WAS A STAIRWELL.

7 Q AS A DEPUTY STANDING IN THE -— SITTING IN THE

8 GUARD STATION AND LOOKING OUT AT THE WAY OF THE CELLS AS

9 WE’VE DESCRIBED THEM, WOULD THERE BE ONE -— ONE STAIRWELL?

10 TWO STAIRWELLS? MORE THAN TWO?

11 A THERE WAS ONE STAIRWELL PER SECTOR.

12 Q AND AS YOU WOULD LOOK AT THE CELLS ARRANGED

13 IN FRONT OF YOU FROM THE GUARD STATION, WOULD THAT STAIRWELL

14 BE ON THE LEFT OF THE -— AS YOU LOOKED AT IT, THE LEFT OF

15 THE CELLS, THE RIGHT OF THE CELLS, MIDDLE OF THE CELLS OR

16 SOME OTHER PLACE?

17 A I BELIEVE FOR SECTOR 44 THAT WE’RE DISCUSSING

18 IT WOULD HAVE BEEN ON THE RIGHT.

19 MR. CURRIER: THANK YOU, SIR. THAT’S ALL.

20 THE COURT: ALL RIGHT. THEN REDIRECT,

21 MR. BAYTIEH?

22 MR. BAYTIEH: NO. THANK YOU VERY MUCH,

23 YOUR HONOR.

24 THE COURT: ANYTHING FURTHER, MR. MUNOZ?

25 MR. MUNOZ: NO.


2114

1 MR. DAVIDSON: NO, YOUR HONOR.


3 MR. THIAGARAJAH: NO, YOUR HONOR.


5 MR. BROADY: NO, YOUR HONOR. THANK YOU.

6 THE COURT: ALL RIGHT. YOU’RE ON ONE-HOUR CALL.

7 I’M NOT GOING TO EXCUSE YOU. CAN YOU BE HERE IF WE NEED YOU

8 BACK WITHIN AN HOUR OF THE PHONE CALL?

9 THE WITNESS: YES, I CAN, SIR.

10 THE COURT: ALL RIGHT. HAVE A GOOD ONE.

11 THE WITNESS: THANK YOU.

12 THE COURT: AND YOUR NEXT WITNESS.

13 MR. BAYTIEH: THANK YOU, YOUR HONOR. THE PEOPLE

14 CALL

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