tecums (hereinafter “SDTs” or “subpoenas”) that were ...voiceofoc.org/wp-content/uploads/2015/05/Lockup-Motion-to-Compel... · On January 22, 2015, Defendant filed a Summary

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tecums (hereinafter “SDTs” or “subpoenas”) that were served on December 10, 2014, in

accordance with Defendant’s rights to a fair trial and due process pursuant to the Fifth,

Sixth, and Fourteenth Amendments of the United States Constitution; article I, section 15

of the California Constitution; the holding in Delaney v. Superior Court (1990) 50 Cal.3d

785 (hereafter Delaney); and in accordance with Penal Code sections 1326 and 1327.1

MOTION

Defendant, by and through counsel, hereby moves to compel disclosure and/or

discovery by way of subpoenas, evidence in the possession of the above-referenced third

party media organizations and/or their agent (hereinafter “Media Third Parties”). As will

be explained herein, Defendant contends that the requested information is relevant to his

defense and that initially, he need only show a “reasonable possibility that the information

will materially assist his defense.” (Delaney, supra, 50 Cal.3d at p. 808.) After satisfying

the minimum threshold test required for criminal defendants to pierce the media’s statutory

and constitutional protections, this Court shall conduct a four-part balancing test as

enunciated in Delaney, whereby the Court shall weigh the media’s right against disclosure

versus Defendant’s right to a fair trial. Defendant contends the information requested

pursuant to the subpoenas is not only compliant with the holding of Delaney, but also

sections 1326 and 1327—and thus, disclosure further assures Defendant’s fundamental

right to a fair trial and due process. As such, this motion is made pursuant to the Fifth,

Sixth, and Fourteenth Amendments of the United States Constitution; article I, section 15

of the California Constitution; the holding in Delaney; and sections 1326 and 1327.

This motion will be based upon police reports; declaration of counsel and any sealed

portions thereof; any documentary evidence attached hereto and incorporated by reference

in the sealed declaration of counsel; the attached Points and Authorities, which are hereby

expressly incorporated by reference; and the argument of counsel presented at the hearing

hereon.

1 All further references are to the Penal Code unless otherwise noted.

Defendant’s Motion to Compel

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STATEMENT OF THE CASE

On May 28, 2012, the Orange County District Attorney’s Office (hereinafter

People) filed a felony complaint in case 10HF0920 against Defendant, alleging in Count 1,

a violation of section 187, subdivision (a) [Murder]; and in Count 2, a violation of section

187, subdivision (a) [Murder]. As to each count, the People further alleged special

allegations pursuant to sections 190.2, subdivision (a)(1) [Murder for Financial Gain]; and

190.2, subdivision (a)(3) [Multiple Victims]; and an enhancement pursuant to section

12022.53, subdivision (d) [Personal Use of a Firearm].

On June 1, 2010, Defendant appeared in Department CJ1 before the Honorable

Stephanie George for arraignment. The Public Defender was appointed and Defendant

continued his arraignment to June 25, 2010.

On June 18, 2010, the matter was advanced to June 23, 2010, in Department CJ1

before the Honorable Walter Palmer Schwarm for arraignment. On June 23, 2010,

Defendant again waived his right to be arraigned and the matter was continued to July 19,

2010.

On July 19, 2010, the matter was heard in Department CJ1 for arraignment before

the Honorable Walter Palmer Schwarm. Defendant was present in court and he entered

pleas of not guilty, and denied all special allegations and enhancements.

After multiple continuances of the preliminary hearing, the People elected to

proceed by way of Grand Jury Indictment (see infra). As such, on May 4, 2012, in

Department C-5 before the Honorable Craig E. Robison, the People dismissed case

10HF0920.

On May 3, 2012, the People filed an indictment against Defendant, alleging in

Count 1, a violation of section 187, subdivision (a) [Murder]; and in Count 2, a violation of

section 187, subdivision (a) [Murder]. As to each count, the People further alleged special

allegations pursuant to sections 190.2, subdivision (a)(1) [Murder for Financial Gain]; and

190.2, subdivision (a)(3) [Multiple Victims]; and an enhancement pursuant to section

12022.53, subdivision (d) [Personal Use of a Firearm]. On the same date, the court found a


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true bill and set the arraignment on the indictment for May 4, 2012. Defendant was in

custody at the time.

On May 4, 2012, the matter was set in Department C-5 before the Honorable Craig

E. Robison for arraignment on the indictment. Defendant appeared before the court, the

Public Defender was appointed, and Defendant entered pleas of not guilty and denied all

enhancements and allegations.

On July 3, 2012, Defendant, by and through counsel, filed a motion to dismiss the

indictment pursuant to section 995 and a motion to suppress evidence pursuant to section

1538.5.

On December 14, 2012, Defendant, by and through counsel, withdrew his motion

pursuant to section 1538.5.

On February 7, 2013, the People filed their opposition to Defendant’s motion

pursuant to section 995.

On February 15, 2013, the matter was heard in Department C-35, before the

Honorable James A. Stotler. As to the section 995 motion, the court read and considered

Defendant’s 995 motion, the Grand Jury Transcript, the People’s Opposition, and exhibits

from the Grand Jury Indictment. Defendant’s motion was denied.

On March 7, 2014, the matter was set in Department C-35 for pre-trial to address the

Subpoena that was served on NBC Universal Media, LLC. Nevertheless, no

representatives from said organization were present on said date. As such, with regard to

the Subpoena, the court set a future pre-trial date of May 2, 2014, to address third party

media organization’s response and objections to the Subpoena. Furthermore, a back-up

jury trial was set for June 27, 2014, in Department C-35. Additionally, on April 15, 2014,

Defendant served a subpoena duces tecum on 44 Blue Productions, which is also

represented by the same law office that represents NBC Universal Media, LLC.

On April 18, 2014, 44 Blue Productions filed its response and objections to the

subpoena. On April 22, 2014, Defendant filed a motion to compel. On May 27, 2014,

NBC Universal Media, LLC and 44 Blue Productions filed its opposition to Defendant’s


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motion to compel. The hearing on the motion to compel was continued several times

before being withdrawn on August 4, 2014.

On January 21, 2015, Defendant filed a Motion Continue the Jury Trial Date


On January 22, 2015, Defendant filed a Summary of Motion to Dismiss the Death

Penalty.

On January 23, 2015, Defendant filed a Motion to Recuse the OCDA’s Office


On January 27, 2015, the Honorable James A. Stotler recused himself from the case

pursuant to Code of Civil Procedure section 170.1, subdivision (a)(6)(A)(i)-(iii). On that

same date, the case was reassigned to the Honorable Thomas Goethals.

On January 29, 2015, the People filed an affidavit of prejudice, pursuant to Code of

Civil Procedure section 170.6, subdivision (a). On that same date, the matter was

reassigned for all purposes to the Honorable John D. Conley.

On February 5, 2015, Defendant filed an Introduction and Statement of

Disqualification against Judge Conley pursuant to Code of Civil Procedure section 170.1

et. al. On February 11, 2015, Judge Conley filed an Answer pursuant to Code of Civil

Procedure section 170.3, subdivision (a)(3). On February 17, 2015, Defendant filed a

Supplement Statement of Disqualification pursuant to Code of Civil Procedure section

170.1 et. at. On February 20, 2015, Judge Conley filed a Motion to Strike the

Supplemental Statement of Disqualification. On February 24, 2015, the matter was

assigned to the Honorable Kevin C. Brazile in the Los Angeles County Superior Court. On

February 27, 2015, Defendant filed a Request to Augment the Statement of

Disqualification. On March 9, 2015, the motion to disqualify Judge Conley was denied.

On March 24, 2015, Defendant filed a writ as to the denial. On March 30, 2015, the

People filed an Informal Response. On April 3, 2015, the writ was denied. On April 13,

2015, Defendant filed a Petition for Review in the Supreme Court of California.

On April 24, 2015, Defendant filed an Addendum to Motion to Compel Discovery.


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On April 29, 2015, 44 Blue Productions and Producer Suzanne Ali filed a Motion to

Quash.

The case is presently set for motion and pretrial on May 15, 2015, in Department C-

30.

STATEMENT OF RELEVANT FACTS AND BRIEF ANALYSIS

MSNBC’s Lockup program has relevance to a number of issues in the pending

proceedings. One disputed issue, of course, is the circumstances surrounding statements

made by Wozniak to the Lockup production crew—statements that were broadcast to the

viewing public and which the prosecution has indicated they may seek to admit at the

penalty phase of the trial. Whether the Lockup production crew stumbled upon Wozniak

without prodding or direction by an employee of the Orange County Sheriff’s Department

(“OCSD”)—as is claimed by Suzanne Ali (“Ali”) and Ben Garcia (“Garcia”) of OCSD’s

Special Handling Unit—will ultimately be the key factor in analyzing whether the

statements were obtained in violation of the Sixth Amendment of the United States

Constitution.

The actions of members of the Special Handling Unit, in working with the

production crew and otherwise participating in the program, are also relevant to the analysis

of the contact between Wozniak and Fernando Perez (“Perez”), the jailhouse informant who

obtained statements from Wozniak just two months prior to when Ali approached Wozniak

and questioned him. Both Garcia and Perez, who worked together for more than a year,

also have claimed that Perez’s contact with Wozniak was not prompted in any way by

members of the Special Handling Unit. Evidence that Special Handling deputies directed

the production team to obtain statements from inmate defendants (including Wozniak)—and

then hid those efforts—would devastate the credibility of key witnesses and their claims that

the contact between Perez and Wozniak was coincidental and not incited by the Special

Handing Unit.

The actions of the OCSD in relation to the production of Lockup are also relevant to

a myriad of issues connected to a request that the death penalty be dismissed in this case,


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which is based upon Defendant’s contention that its imposition would be arbitrary and

capricious, and that the government’s conduct related to this case has been outrageous. In

sum, evidence that the employees of the OCSD concealed critical information related to

Lockup powerfully corroborates that the agency cannot be trusted to turn over favorable

evidence related to the death penalty.

As will be discussed, the OCSD and its Special Handling deputies have explained in

recent hearings in People v. Scott Dekraai, that the decision to per se withhold all law

enforcement writings contained within a computer file system entitled “TREDs,” was based

upon confidentiality and security concerns. However, the lack of concern related to inmate

confidentiality and security by members of the Special Handling Unit as they sought to

provide assistance to Lockup—a program that would deliver both incriminating statements

and a potentially enhanced reputation for deputies—is stunning. The conduct corroborates

the fraudulent nature of claims that concealment was motivated by legitimate confidentiality

and security considerations.

The subpoena also seeks documents and recordings pertaining to an inmate, Lance

Eric Wulff (“Wulff”), who was selected to be featured on Lockup, and was apparently

filmed. Wulff was a witness for the government at the time of his participation in Lockup,

and worked as an informant within the jail. Defendant will present information in this

motion showing why the selection of Wulff and a second jailhouse informant was also

shockingly prompted by the Special Handling Unit. Jeremy Bowles (“Bowles”) appeared in

the first Lockup episode. Wulff never appeared in an episode. There is persuasive

circumstantial evidence suggesting that Lockup agreed to remove Wulff from the program

at the request of the OCSD. However, there is not a single e-mail within the seven hundred

pages of OCSD documents that include even the slightest indication about Wulff’s

exclusion from the aired programming, or what led to that decision.

Evidence of efforts by the OCSD to convince Lockup not to show Wulff on air, and

an agreement by Lockup to accede to the request has relevance to a number of critical

issues. First, a relationship that would allow law enforcement to veto portions of the final


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on air programing strongly indicates the existence of a relationship in which law

enforcement is far more likely to be suggesting which inmates should be solicited for

participation. It is only logical that Lockup would be far more likely to acquiesce to

suggestions not to air a particular inmate—even after being filmed—if law enforcement had

been “kind enough” to have suggested originally who should participate in the programs.

As will be discussed, Wulff’s life story appeared in a newspaper series two years later—but

under a pseudonym, “Tom.” His anonymous inclusion in an Orange County Register

article, and the fact that the OCSD appears to have led the newspaper to Wulff, corroborate

that the agency had a change of heart about Wulff’s interview being seen on Lockup. As

will be explained, though, this decision seems less likely motivated about concerns

regarding Wulff, and instead about what might be learned about him by defendants in three

cases in which Wulff was a witness for the prosecution. In two stories appearing in the

Orange County Register, Wulff was not entirely truthful about his role in his charged crime,

and revealed details of his criminal history far more complete than what was presented at

grand jury proceedings in two separate cases. Again, this raises the reasonable likelihood

that the government sought to pull Wulff from Lockup, not because of an authentic

confidentiality concerns, but because what he said during the taping was damaging to his

own credibility and that of prosecutors in other cases. Efforts by the OCSD, and members

of its Special Handling Unit, to suppress favorable evidence related to jailhouse

informants—both by requesting that Wulff not be included in the aired program, and by

concealing communications about that subject matter—further support the argument that

this agency will unhesitatingly hide favorable evidence from defendants.

In sum, many of the actions and representations of the OCSD related to the Lockup

program further confirm that the OCSD is an agency that simply cannot be relied upon to

turn over evidence helpful to Defendant’s penalty phase, and thereby support his contention

that the imposition of the death penalty would be arbitrary and capricious, and in violation

of the Eighth and Fourteenth Amendments.


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I. RECURRING THEME OF “COINCIDENTAL CONTACT” IN THE

ORANGE COUNTY JAILS: ANOTHER THIRD PARTY DECIDES TO

QUESTION WOZNIAK

The Motion to Quash filed on behalf of 44 Blue and its former field producer

Suzanne Ali (“Media Third Parties”), voices frustration over subpoenas directed toward the

identified parties in the course of this litigation. Quite obviously, the expression of

indignation that permeates the Motion to Quash is largely redirected frustration about a

veteran producer’s surprising decision to review her notes and answer questions both about

why she approached Wozniak, and her process of identifying inmates for possible

participation in the program. Significantly, these questions were not posed by the defense,

but by OCSD Deputy Ben Garcia (“Garcia”) and a yet unidentified Deputy District

Attorney with the OCDA.

While Media Third Parties discuss at length prior subpoenas in this case, the number

of subpoenas previously issued and nearly all of the history surrounding those subpoenas is

irrelevant to the matter at hand: the instant subpoenas arise from a decision by Ali to answer

Garcia’s questions. The receipt of those interviews by the defense and Ali’s version of

events stimulated further investigation and analysis. Prior to giving her statement, no one

from the production team had provided a description of events leading to Ali’s contact with

Wozniak. However, once her statement was made available and then examined alongside

other information uncovered in the past year, it became clear that she and OCSD deputies

had colluded to falsely present how inmates were selected for the program.

Moreover, although it certainly would not sway their opposition, Media Third Parties

understandably did not fully appreciate how the issues related to the supposed “Lucky

Lockup Selections” relate to the recent informant litigation in People v. Dekraai, and the

forthcoming litigation in this case regarding whether the death penalty should be imposed

upon Defendant. Nor did Media Third Parties likely realize that the described coincidental

contact between Suzanne Ali and Daniel Wozniak came just two months after a jailhouse

informant named Fernando Perez contacted Wozniak and elicited statements from


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Wozniak—in another instance of purported coincidental contact, at least according to both

Perez and the government. Finally, prior to receiving this brief, it is unlikely that Media

Third Parties realized that the Special Handling Unit of the OCSD was closely connected,

not just with the activities of the 44 Blue production crew that filmed within the Orange

County Jail, but also to the activities of jailhouse informants, including those of Fernando

Perez.

As mentioned above, the prosecution in this case claims that statements obtained by

Fernando Perez from Wozniak in July of 2010—the first of dozens claimed over the next

fifteen months—were the product of mere coincidence. After hearings conducted in 2014

in People v. Dekraai, in which issues of Wozniak’s appearance on the Lockup program

were addressed briefly—the OCDA and the OCSD purportedly decided to join forces to get

to the “truth” about Ali’s decision to approach Wozniak. Ali’s description could have just

as easily been one delivered by Perez; in a jail filled with thousands of inmates, it was pure

happenstance that Ali—just like Perez—ended up in a conversation with the man charged in

a double murder.

II. SPECIAL HANDLING’S ROLE IN THE JAIL

As indicated above, Ben Garcia is not just any deputy working within the jail, and his

role in the Special Handling Unit is ultimately revealed to be important to both the Lockup

program and the jailhouse informant program. That Unit, and its responsibilities within the

jails, came into focus in motions and hearings in Dekraai, held in 2014 and 2015. Over the

past sixteen months, the Unit’s role within the jails has finally come into focus—despite the

best efforts of several veteran deputies who have been assigned to it. Three individuals who

served in the Special Handling Unit, and were are also involved with the Lockup production

(Deputies Garcia, William Grover (“Grover”), and Seth Tunstall (“Tunstall”), were key

witnesses in the Dekraai litigation.

In 2014, it became increasingly clear that contacts between jailhouse informants and

inmates, often presented as coincidental, were nothing of the sort. An analysis of the

lengthy, hidden history of purposeful, coordinated contact between jailhouse informants and


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targeted inmates, is detailed in the Summary Motion to Dismiss (“Summary”) attached

herein, as Exhibit A.2 As an inmate who had worked as an informant in Orange County at

different times for more than a decade, Perez went back into the business full time within

the jails in July of 2010. As mentioned above, Perez would work on a daily basis for the

next fifteen months. His first known target was capital defendant Daniel Wozniak. His last

known target was capital defendant Scott Dekraai.

In Garcia’s 2014 testimony, the deputy was insistent that he was never the “handler”

of any informants—including Perez—even though 1) Perez believed Garcia was his handler

and described him as such in testimony, 2) Perez nearly always directed his informant

correspondence to Garcia, 3) Garcia met with Perez in the jail, and 4) Garcia maintained

and summarized approximately two hundred pages of Perez’s notes.3

During their 2014 testimony in Dekraai, Garcia, Grover, and Tunstall also presented

a unified depiction of the informant program within the jails: In sum, they claimed none

existed. In a declaration subsequently submitted in support of a Motion to Quash a

subpoena filed for jail records, Classifications Sergeant Brent Benson reiterated that this

claim also represents the official position of the OCSD. (Declaration of Sergeant Brent

Benson, attached to Motion to Quash Subpoenaed records, signed, and attached herein as

Exhibit C.) The Special Handling deputies also maintained their collective claim that there

were no efforts to coordinate the movements of inmates and informants to obtain statements

from defendants and their charged crimes.

2 It is requested that the Summary Motion be read and considered as an offer of proof for issues and information relevant to this motion. 3 “Q: Who are your handlers? A: Ben Garcia and Gonzo Gallardo and I believe Tony, Tony Garcia.” (Partial transcript of Hearings in People v Dekraai, Exh. B, at p. 434.) The next day, Perez testified that, “My main—one of my main handlers was Ben Garcia. But when he wasn’t there, it would be—at that time it was Grover, Bieker, Barajas, Padilla.” (Exh. B, at p. 697.)


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However, on August 4, 2014, the Honorable Thomas Goethals issued a ruling that

included the following:

Many of the witnesses who testified during the course of this hearing were credibility challenged. These witnesses included current and former prosecutors, as well as current and former sworn peace officers. Some perhaps suffered from failure of recollection. Others undoubtedly lied. (Ruling, August 4, 2014, People v. Dekraai, attached herein as Exhibit D.)

The court made another significant finding, as well:

[T]his court finds that working informants and targeted inmates were at times intentionally moved inside the Orange County Jail by jail staff, often at the request of outside law enforcement agencies, in the hope that inmates would make incriminating statements to those informants. Such intentional movements were seldom, if ever, documented by any member of law enforcement. Therefore little or no information concerning these intentional movements was ever created or turned over to defense counsel as part of the discovery process. (Exh. D.) While these findings certainly rebutted the testimony of Special Handling deputies

and strongly indicated that Judge Goethals believed the deputies had lied, evidence obtained

subsequent to the ruling would demonstrate that the deception went far further the ruling

suggested. Pursuant to a subpoenas for records in the instant matter, Wozniak obtained

additional, powerful evidence of decades long concealment. The unearthed evidence also

demonstrated that the scope of lying during the 2014 Dekraai hearings was vastly

underestimated.

Subpoenas issued to the OCSD in this case revealed the existence of TRED files—

files containing notes principally written by members of the Special Handling Unit. The

TREDs had been systematically withheld from defendants for 25 years. Newly discovered

evidence, including relevant TRED entries, persuaded Judge Goethals to reopen the Dekraai

hearings, which resumed in February of 2015.

The concealed TREDs of Perez also included important information bearing on the

credibility of the coincidental contact claim related to Perez and Wozniak. During the 2014

hearings, Garcia stated that Perez was not an informant when he had contact with Wozniak,

and indicated that his unit had done nothing to encourage Perez to collect statements.


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However, during the recommenced 2015 hearings, Garcia admitted that he actually read

Perez’s TRED before testifying in the 2014 hearings. His earlier non-disclosure and silence

nearly allowed an entry by Special Handling Deputy Padilla to remain hidden forever—

even though it casts substantial doubt on Garcia’s rendition of Special Handling’s role in the

informant contact with Daniel Wozniak. (Exh. B, at p. 6510.)

One of Perez’s TRED entries, created just seven days before Perez was transferred

into Mod J, showed that the Unit was on the verge of placing Perez into protective custody

in order to provide him with maximum protection from Mexican Mafia rivals associated

with Peter “Sana” Ojeda. Special Handling Deputy Padilla’s June 9, 2010 entry in Perez’s

TRED includes the following: “************TOTALSEP*****PROTECTIVE

CUSTODY******POTENTIAL VICTIM.” (TRED file for Fernando Perez, attached

herein as Exhibit E.) However, two hours and thirty five minutes later, Padilla made

another entry stating the following:

S/H: CHANGE IN PLAN. ^ WILL NOT BE P/C’D AT THIS MOMENT. ^ NOW A SPECIAL MANAGEMENT CASE FOR S/H. NOTIFY IRC S/H IF PROBLEMS W/^. D FLEXED TO TTL SEP L3. (Exh. E.)

At the Dekraai hearings in February, Garcia said that he could not definitively explain the

reasons for this classification decision, which led Perez to being “flexed” to Level 3 and

thereby avoid wearing a blue band. (Exh. B, at pp. 6524-6530.) He was questioned,

though, regarding the impact that wearing a blue colored band—the band that must be worn

by protective custody inmates—can have on informant efforts:

Q. When you have a person who is going to do informant work, would you agree with me that it is difficult to have them be effective if they are wearing a blue band, they are in protective custody? A. Yes, sir. Q. Okay. And will there be, in your experience in the jail, adjustments made from time to time with informants so that their band color is not blue? A. Yes, sir. (Exh. B, at p. 6516.)

Garcia was reluctant to admit the obvious: Perez had been reclassified as a Level 3 inmate,

instead of a Level 5 protective custody inmate, so that he could avoid wearing the blue band

that would have placed inmates on notice that he was a likely informant. Garcia knew that


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the TRED entry was wholly inconsistent with his prior testimony at earlier hearings. The

believability of Garcia’s attempts to suggest he was in the dark about the import of Perez’s

TRED entry were further damaged by an entry that he had personally made in the TRED for

jailhouse informant Oscar Moriel (“Moriel”), on July 14, 2009. Moriel’s TRED explained

that he was flexed to Level 3 “to better assist” law enforcement:

^ WAS RE-HSD AND CLASSIFIED AS LVL-3 TOT/SEP AT THE REQUEST OF SAPD INV’S FLYNN AND GALLARDO. ^ IS THEIR CI AND IS BEING RECLASSIFIED TO BETTER ASSIST THEM WITH THEIR INVESTIGATION. (Redacted TRED file for Oscar Moriel, attached herein as Exhibit F, emphasis added) It was nearly identical to the TRED entry for Perez, but included a few additional

words to explain why such adjustments are made—something that Garcia refused to be

candid about when caught in his deceptive Dekraai testimony. The problem is that even if

it were plausible somehow that Garcia believed he could not mention TREDs in court,

nothing prevented him from simply telling the truth; that approximately one week before

Perez was moved in Mod J—a module that included an informant tank per former Special

Handling Deputy Jonathan Larson—his Unit assigned Perez a classification level that would

allow him to be a highly effective informant. This classification decision—allowing Perez

to avoid wearing a blue band—was critical in enabling Perez to produce prodigiously as an

informant for the next fifteen months. (Exh. B, at p. 6748.)

With this information finally available, the coincidences began to stack up: 1)

Perez’s classification was adjusted just a week before he moved into an informant tank,

which Special Handling Deputies hid throughout last year’s hearings; 2) Wozniak followed

Perez into that same tank one day later; 3) the first inmate from whom Perez obtained

statements was Wozniak; and 4) per Judge Goethals’ ruling, inmates had been targeted for

contact by informants, and evidence related to the contacts and movements was hidden from

defendants.

But the discovery of the systemic concealment of TREDs was not the only major

revelation of the hearing. The unified claim that the OCSD lacked a jailhouse informant


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program (perpetuated by Garcia, Tunstall, and Grover during their 2014 testimony) had

been a fraud.

Deputy Tunstall was a member of the Special Handling Unit for nearly a decade

before being loaned to the Santa Ana Gang Task Force. (Exh. B, at pp. 6277-6278.) In the

resumed Dekraai hearings of 2015, evidence was presented that Tunstall signed a sworn

affidavit under the penalty of perjury in support of issuance of a search warrant in 2013.

(Ex. A118 from Dekraai hearings, attached herein as Exhibit G.) In his declaration,

Tunstall wrote that one of the responsibilities of the Special Handling Unit is “developing

confidential informants.” (Exh. G.) He also wrote in the affidavit that “[d]uring my

employment with the Sheriff’s Department, I have cultivated, interviewed and supervised

numerous confidential informants.” (Exh. G.)

The affidavit is irreconcilable with the testimony of Sheriff’s Deputies at the 2014

hearings. Just one example of the deception on this subject is the following exchange with

Tunstall:

Q. When you were in Special Handling, you did extensive work with informants, correct, within the jail? A. I personally never signed up any informants within the jail, if that’s your questions. (Exh. B, at p. 3119.) Considering the contents of the above referenced search warrant affidavit, the

question called for a single word response: “Yes.” But last year, Tunstall and his colleagues

clearly and correctly believed that they could avoid the truth about the informant effort

through linguistic semantics. This answer was characteristic of testimony that has poisoned

the proceedings. Counsel did not ask if Tunstall had “signed up any informants within the

jail.” As he would finally admit in February 2015, Tunstall was, in fact, unaware of Special

Handling ever signing an informant to an agreement. (Exh. B, 6517.) Nonetheless, this

search warrant affidavit and the others Tunstall admitted to signing previously confirm he

worked extensively with numerous inmates, whom he described as confidential

informants—at least when discussing or writing about the subject matter outside the context

of the Dekraai hearings.


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The truth was that Garcia, Grover, and Tunstall had devised a strategy to minimize

the jail informant effort to assist the prosecution’s response to the Dekraai litigation,

utilizing a combination of dishonesty and misdirection. After not answering the direct

question, he attempted to press a definition of confidential informants (used repeatedly by

Garcia) that limited the universe of jailhouse informants to those who were “signed up,”

even though both knew that jail deputies do not “sign up” informants. (Exh. B, at pp. 6298,

6364, 6375.) “Signing up” informants was neither was neither a legal prerequisite for such

a designation nor one that he himself employed, except when testifying in Dekraai. Before

being confronted with the affidavit last month he was asked, “Is it even part of the job of

special handling to try to locate informants, develop informants, things like that?” Tunstall

answered, “No.” (Exh. B, at p. 6297.) He said that it was not, that he had not done that, and

that he was unaware of other Special Handling deputies doing what he had attested was part

of their job. (Exh. B, at p. 6298.)

After finally being confronted with the document signed under penalty of perjury in

which he said he “developed confidential informants,” Tunstall conferred with his attorney.

(Exh. B, at p. 6347.) Then, instead of finally acknowledging that he and his colleagues had

attempted to deceive this Court about Special Handling’s role with informants, he embarked

upon a new path of perjury, claiming that he “did not mean ‘develop.’” (Exh. B, at pp.

6348-6349.) He had used the “wrong word” in the search warrant, he claimed. (Exh. B, at

pp. 6348-6349.) He asserted that he meant to communicate that, “we pass on information

from confidential informants,” not that Special Handling develops confidential informants.

(Exh. B, at pp. 6348-6349.) This tortured lie would not be his last on this subject matter.

Tunstall preemptively tried to fix the unfixable:

Q. Okay. So you don’t do that. You don’t cultivate confidential informants and try to develop them? A. No. As a matter of fact, I think I also put in there that I cultivate—cultivated and supervised. I supervised the information being passed to the outside agencies. And I believe I probably put “numerous.” Maybe I should choose a different word, but I still—I view “numerous” more than just a couple. So I think that’s why I put it there.” (Exh. B, at p. 6348.)


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But it would soon become clear that “numerous” did not even mean “more than just a

couple.” It actually meant none, according to Tunstall.

Q. Okay. So you never—you didn’t supervise confidential informants? A. Guess that’s the wrong word again. Q. Did you ever supervise confidential informants? A. No. Q. Never? A. I am not a C.I. handler. (Exh. B, at p. 6351.) He later reiterated that defense counsel was “correct” in stating that he “never

supervised a confidential informant let alone numerous confidential informants.” (Exh. B,

at p. 6352.) Why did Tunstall continue to run from what he had written when it would

potentially damage the viability of other convictions in which he had filed identically

worded affidavits? With this Court listening closely to his answers, Tunstall clearly decided

that it was more important to stick to the 2014 lies about the informant program so as to

somehow further avoid implicating himself, Garcia, and Grover in perjury in this case.

Corroboration of the fact that Tunstall lied in these proceedings—rather than in his

search warrant affidavits—came from former Special Handling Deputy Jonathan Larson

(“Larson”). Larson acknowledged working with “Garcia and Grover” during his relatively

short stint with the Special Handling Unit. (Exh. B, at p. 6740.) When asked about

expectations regarding his work with informants, Larson stated the following:

Q. Was one of your jobs to kind of develop informants in the jail, identify them and manage them if they were assistance? A. I would say yes. (Exh. B, at p. 6740.) Larson also stated that he was informant Alexander Frosio’s (“Frosio”) handler in the

jail: “I was the one overseeing him being an inmate that was giving us information,”

meeting with him “probably once a week.” (Exh. B, at p. 6743.) Larson agreed that at one

point Frosio was given the opportunity to produce information, but that if that failed, Frosio

would be placed in protective custody. (Exh. B, at p. 6747.) Frosio provided information

about crimes on the street and in the jail. (Exh. B, at p. 6743.) Larson also agreed that he

was the handler for other informants. (Exh. B, at p. 6745.)


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There was yet more stunning evidence that key officers were so committed to

deception in this case, that they were willing take the chance that other contradictory

evidence could somehow be uncovered and show that the officers had conspired to lie in the

Dekraai hearings. As mentioned above, Garcia claimed that he did not handle

“informants.”

However, when Garcia provided testimony in a 2013 civil deposition in Mark

Cleveland v. Orange County Sheriff’s Department, et. al., the Ben Garcia who testified

appeared unrecognizable from the Ben Garcia who testified in the Dekraai proceedings. In

his deposition, he neither seemed intent on providing the extremely limited definition of

“informant” repeatedly offered in the Dekraai hearings, nor interested in denying he was a

“handler” of informants. Garcia said that Cleveland “has been an informant for everybody

for a lot of years, and I personally don’t like working with people like that.” (Exh, B, at pp.

6375-6376.) Garcia clearly had not recognized the importance yet of shrinking the pool of

informants in the jail to those who were who were “signed up”—or contemplated that

inconsistent evidence would ever catch up with him. Garcia said the reason he did not like

working people like Cleveland was: “Because they’re reckless. They reach out. They try to

do their own thing and I can’t deal with someone like that. If I’m going to be a handler of

somebody and work a particular informant, I want to have control of who they are talking to

and what’s going on.” (Exh. B, at p. 6574.)

During the 2014 Dekraai proceedings, Garcia denied ever working as a handler for

informants. When he returned to the witness stand in 2015, Garcia claimed his deposition

answer was only meant to describe how he would conduct himself if he ever was a handler.

(Exh. B, at p. 6574.)

In a March 12, 2015 ruling in Dekraai, Judge Goethals’ made the following findings

regarding Garcia and Tunstall:

After listening to their recent testimony, and comparing it to the prior testimony of both deputies, this court concludes that deputies Tunstall and Garcia have either intentionally lied or willfully withheld material evidence from this court during the course of their various testimonies. For this court's


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current purposes, one is as bad as the other and it is therefore not necessary to engage in the semantical analysis required to determine which of these possibilities has occurred. This court will leave that evaluation to prosecutors employed by the executive branch of government. What is crystal clear is this. Deputies Tunstall and Garcia were two of the Orange County Sheriff's most experienced classification and special handling deputies. Both worked in the Orange County Jail in those capacities for many years. During those years both became thoroughly familiar with the existence and function of the TRED records system. Each personally made thousands of entries in the TRED system.

They understood that inmate moves were documented and often explained on the TRED system. Both testified that a review of an inmate's TRED records would likely be the best way to determine when and why that inmate's housing was changed. Tunstall and Garcia at least generally understood when they were first called to testify on the current motion what the issues to be discussed would be, and that these issues involved inmate movements within the jail. Neither mentioned the existence or content of the TRED records at any time during their initial testimony on the current motions. (Supplemental Ruling of Thomas Goethals, People v. Dekraai, March 12, 2015, attached herein as Exhibit H.) A. Assumptions of Candidness and Coincidence

The OCSD and MSNBC’s Lockup Program might have appeared at first blush to

have been rooted in a mutually beneficial and law-abiding relationship that allowed

fascinating programming for MSNBC, and the presentation of an able law enforcement

agency dutifully managing one of the largest inmate populations in the United States. The

OCSD certainly was motivated to perpetuate this image to the public. A 2011 news article

appearing in the Orange County Weekly, and written by R. Scott Moxley, described the

overtures made by MSNBC producers toward the OCSD in 2006 and 2010. (R. Scott

Moxley, The Hard Cell at the OCJ, OCWeekly, May 19, 2011.) The article describes

damage inflicted to the image of the OCSD resulting from the jail death of John

Chamberlain, amid the appearance of complicity by OCSD deputies. (The Hard Cell at the

OCJ, supra.) The piece also discussed a 2010 e-mail written by producer Ray Haimes, in

which he reached out again to see whether the OCSD would be interested in participating in

Lockup. (The Hard Cell at the OCJ, supra.) Defendant Wozniak obtained this e-mail,


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along with others, pursuant to a subpoena to the OCSD, in what was allegedly a complete

set of communications between the production company and the OCSD, which is attached

herein as Exhibit I.4 The e-mail’s description about the “BENEFITS OF

PARTICIPATION,” included that the program “[i]mparts insights into the motives of

particular inmates who sometimes open up to our producers in ways they have not

previously done with staff.” (Exhibit I, PD 117.)

III. The Intersection Between Informant Contact with Wozniak, Lockup

Contact with Wozniak, and the Motion to Dismiss the Death Penalty

A. The Role of Special Handling in the Lockup Production—The Contact Between

Ali and Particular Inmates

According to field producer Ali, she found herself drawn to reach out to Wozniak

while coincidentally strolling through Wozniak’s jail unit. In a report written by OCSD

Deputy Ben Garcia, Ali told Garcia that Ali happened to notice Wozniak wearing both

undersized clothing and a “fake actor’s grin.” (Report of Deputy Ben Garcia, August 28,

2014, attached herein as Exhibit J, emphasis added.) Ali explained that in in determining

which inmates she would contact about appearing in the program, “if somebody stood out to

her she would approach them and talk to them.” (Exh. J, at 21469.)

The lottery style luck was that the “fake actor’s grin” she noticed at the very moment

he flashed it in her direction, actually belonged to a former amateur actor in Wozniak,

whose participation in a play near the time of the crimes was coincidentally an important

part of the double murder investigation. In fact, Wozniak’s history as an actor would

eventually become a lead in for the episode in which he was featured—a program that

included another capital defendant, Jason Richardson, who apparently must have also done

something to catch Ali’s careful eye.

4As will be discussed, compelling reasons now exist to doubt the completeness of the provided communications, as well as all representations made by the OCSD about the completeness of its compliance to the court order and its willingness to disclose mandated discovery under Brady.


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In the first few minutes of the program, the narrator stated: “Others will call the jail

home until their cases are resolved in court, a process that can take years. One inmate

facing such a prospect, is Daniel Wozniak, who prior to his arrest could be found

performing as an actor on the stages of various Orange County play houses.” (Transcript of

“Unholy Trinity,” attached herein as Exhibit K, p. 2.) For Ali, it was a 1 in 1,000,000

coincidence wrapped in the 1 in 5,1715 coincidence that of all the inmates that she scouted

that day, Wozniak came into her line of sight. Neither Garcia nor Grover had purportedly

clued her in about Wozniak’s acting connection. Her clairvoyant observation, though, fit

far better within a fictional jail drama or a program focused on psychics.

On the heels of the court’s first ruling in Dekraai, the OCDA understandably decided

to interview Garcia about what Ali had told him and about why she decided to approach

Wozniak for participation in the Lockup television program. The report states the

following:

She told GARCIA that WOZNIAK stood out because he was handsome, very tall, and looked to her like Huckleberry Finn because he was wearing a jumpsuit that appeared to be four sized to small. When ALI looked at WOZNIAK, he grinned at her. (Exh. J, pp. 2147, 2148.) In retelling the story, Garcia left out that Ali also noticed the “fake actor’s grin,” and

Ali, in turn, left out the purported observation from her declaration attached to the Motion to

Quash the subpoenas. (Exh. J, at p. 21469.) But it was too late. The description by the

producer and officer turned production assistant of the unforgettable expression could not

be bottled back up. Neither two statements nor a dozen will eliminate the “tell” that both

Ali and Garcia had been dishonest.

Even if they had not included this detail originally, the notion that Ali had stumbled

upon Wozniak, just as Perez had supposedly stumbled upon Wozniak, purportedly unaided

5 Spokesperson McDonald obtained the “average daily numbers for the fiscal year from July 2009 – June 2010.” He told Lockup average daily population was 5,171: 2791 at the Theo Lacy Facility and 1774 at the Central Jail Complex. (Exh. I, PD 303.)


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by even the slightest suggestion from members of the Unit from the jail with whom both

would work closely, reeks of fabrication. One only need consider an alternative explanation

compared to the fantastic one offered by Ali and Garcia: Deputies with the Special

Handling Unit—a Unit with deputies who have engaged in significant deception and

concealment— provided the suggestion to Ali. The Unit was interested in obtaining more

statements from Wozniak, as well as pleasing the production with strong story lines. This

would directly and subconsciously encourage production staff to present the Unit and the

OCSD in the most flattering light possible.

Garcia and Grover had first sent in Perez to question Wozniak. He accomplished his

mission by obtaining incriminating statements. In light of that success, the nature of the

case, and a belief that the former actor possessed the personality characteristics of an inmate

who may be likely to consider speaking on camera, they suggested that Ali approach

Wozniak. For Special Handling Deputies willing to lie, they could accomplish their

objective of obtaining statements, with little chance that the truth would ever be discovered.

Working as a team with a field producer likely grateful that she would not have to weed

through the entire jail for each and every promising story line, Special Handling had an ally

willing to perpetuate the false impression that contacts between Ali and inmates were

random, and without Sixth Amendment implications.

B. Other False Claims of Lockup’s Coincidental Contact with Inmates

Corroborates Deception Related to Wozniak

Unfortunately for Special Handling and Ali, the credibility of claims about how Ali

identified Wozniak further crumbles with the study of other inmates contacts with Ali.

There is ample evidence that Wozniak’s contact with Ali was not the only she had with

prospective inmate participants, which prove that the selection of jail actors was often less

about brilliant instincts and more about the recommendation and facilitation of Special

Handling Unit deputies—though it would take years for this truth to finally come to the

surface.


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C. Additional Evidence of Special Handling’s Purported Role in the Lockup

Production

According to a report written by OCDA Investigator Vivian Tabb (“Tabb”), Garcia

stated that his role with the respect to production of the MSNBC Lockup series was simply

to be security for the MSNBC crew. (Report of Investigator Vivian Tabb, September, 12,

2014, attached herein as Exhibit L.) Garcia asserted that he did not provide any questions

or give the crew any direction as to which inmates they should interview. (Exh. L.)

Ultimately, Garcia’s word should carry little weight—and not just because of his rampant

dishonesty in the Dekraai proceedings. An answer given by Grover during the renewed

2015 Dekraai hearings, e-mails between the OCSD and 44 Blue employees, and portions of

the Lockup production, would soon show that Garcia’s answers to Tabb were either directly

dishonest or purposefully misleading.

When Grover returned to the witness stand in Dekraai in February of 2015, he was

asked about his role in deciding who participated in the Lockup program.

By Mr. Sanders: Did you identify for the program people who you thought would be a good feature story on the program? A. No. Q. Okay. Did Deputy Garcia, to your knowledge? A. No. We – with MSNBC, we introduced them to the jail. They had a knowledge of who they wanted to talk to, and at the same time they asked us, because they were there for a length of time, if there was anybody that we thought that they should speak to. Q. All right. And was that suggested by you or Deputy Garcia, to your knowledge? A. I don’t recall if I suggested or if he suggested it or if somebody else suggested it. They were looking for high profile-type crimes. Q. Okay. A. That’s the best I can give you on my recollection of who or where or how he was introduced. (Exh B., at pp. 6716-6717.) Neither Garcia in answering the questions of Tabb, nor Grover in answering the

questions of defense counsel, had told anything close to the complete truth. Certainly,

Grover’s sworn testimony did not include “the best [he] c[ould] give” about his recollection


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of what he and Garcia told Ali in response to 44 Blue questions regarding the high profile

inmates that he suggested be filmed by the Lockup program. They knew whom they

suggested, but they decided it was better to hide the actual dialogue on inmate selection that

took place between the staff of 44 Blue and the OCSD. And more importantly for purposes

of this motion, Suzanne Ali has presented herself as being just as willing to lie about this

subject matter—strongly suggesting that she understood and understands that these were

secrets better left untold.

D. Another Randomly Selected Inmate for the Program? Jeremy Bowles

(“Bowles”)

Grover certainly remembered that he himself appeared on camera throughout the

first aired episode of the Orange County Extended Series, entitled the “Confession.” (CD of

the “The Confession” attached herein as Exhibit M, and the accompanying transcript is

attached as Exhibit N.) Much of Grover’s discussion on air is about an inmate named

Jeremy Bowles. Bowles appeared in an episode which he talked with what appeared to be

startling candidness about crimes he had allegedly committed, including uncharged

murders. How did producer Ali strike television gold? Did she approach Bowles’ cell

because he was also sporting an unusual expression on his face, that screamed indicated he

was the mass murderer that he claimed he was when he appeared on the program?

In reality, many of the participants were first suggested for consideration by Grover

and/or Garcia prior to Ali employing her various sight tests, and undoubtedly Bowles was

among them. As e-mails would make quite clear, Ali had identified four inmates for

filming, including Bowles, even before the show had been approved by the OCSD.

Ali wrote an e-mail to Special Handling Deputy William Grover, dated June 22,

2010, the following:

Hi Bill, Hope this note finds you well! You may have heard that we’re getting ready to start filming “Lockup Extended Stay: Orange County Jail”. We’re hoping to start at the Central Jail complex this coming Monday and Tuesday (June 28/29). The first week is


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considered a “scout”, but this time I’ll be with my cameraman Bryan Kelly and my associate producer Tracy Powell. If you have some time I would love to meet with you and Ben Garcia Monday or Tuesday. I’d really like you to meet my crew, and think it would be good to discuss how to safely film certain inmates (Wulff, Bowles, Rivas and Lassiter). I’m really excited to be coming back to OC, and am looking forward to seeing you guys again!

Please let me know if you have some time to meet and we’ll schedule our scout around your availability.

I’m really excited to be coming back to OC, and am looking forward to seeing your guys again! Please feel, free to call my cell anytime XXX

Warmest Regards, Suzanne Ali, Field Producer…

(Exh. I, PD 417-418, emphasis added.) Grover did not answer Ali immediately, but instead wrote to Lieutenant Bren

Giudice (“Giudice”):

Before I respond…I wanted to check with you! The “gal” was here a month or so ago…and now well like it looks like it’s a GO! Please let me know what boundaries Special Handling needs to follow before I even respond to this e-mail..thanks. (Exh. I, PD 417-418.) The question appeared to proceed up the chain of command. Next Giudice

forwarded an e-mail to Captain Ronald White (“White”). White responded by

writing a note to Commander David Wilson (“Wilson”) asking if he knew about the

situation. Wilson then wrote the following to

White:

This woman was here about a month ago. She was given a tour of CJX and spoke to several deputies. When she left she said she would talk to her producers to see if they were interested in doing a story on us. That was the last I heard about his. Is this project approved by admin. to go forward? RW. (Exh. I, PD 417.) That e-mail was then apparently forwarded on June 24, 2010, to McDonald. (Exh. I,

PD 417.)

There is only one reasonable and logical explanation as to how Ali was able to name

these four individuals as the ones she intended to interview. (Exh. I, PD 303.) These were


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the names given to her by Grover, Garcia, or both. As will be discussed, the set of e-mails

provided by the OCSD do not include those that include the instructions sought nor

Grover’s response to Ali after he received those instructions.

If Media Third Parties are unwilling—as well, as Ali, Grover, or Garcia—to

acknowledge the logical interpretation of Ali’s e-mail and what it means about how inmates

were selected, there are yet still more coincidences. As mentioned, the lucky Ali found a

participant in Bowles that was nearly the perfect candidate for the television program—

someone willing to paint a vivid picture of having committed the most violent and serious

of crimes (whether he actually committed them or not):

UNF: How many people have you killed? JB: Oh, man, I like to just keep that to myself. A lot. Enough that maybe

shouldn’t be saying this on camera, but just a lot. I didn’t believe in drive-bys. I believed in knocking on people’s door, and walking in their houses. Anybody can pull a gun, you could look the other way, pull the trigger. You wake up the next day, you actually never seen nothing. But to actually get up in somebody’s face and do something to them, that’s where you become numb. Once you do it once, you can do it for the rest of your life. (Exh. N, at p. 10.)

Bowles eventually claimed that he committed “29 murders in detail.” (Exh. N, at p. 24.)

The program’s narrator explained that Bowles not only described the crimes to the show,

but also to jail officials—Grover and his partner (Garcia). (Exh. N, at p. 24.) According to

Grover, “After spending time with Jeremy Bowles, he’s basically confessed to my partner

and that he has committed numerous murders in different ways.” (Exh. N, at p. 24.)

Among his victims was purportedly an individual accused of being an informant.

(Exh. N, at p. 24.) Was it yet another coincidence that cameras were rolling as Grover

approached Bowles at his cell, and said, “Hey Bowles, Is now a good time to talk about

what we were talking about earlier?” (Exh. N, at p. 25.) Grover then continued to question

Bowles as the filming continued:

DG: Do you feel that-that part of this and part of the reason why you may be talking about these things that haven’t been talked about or discussed or even known by law enforcement, is part of, uh, a sense for you to bring some closure to some things?


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JB: Yeah. I just--you know, dealing with all this, and just everything period is just taking its toll on me, and I think it’s just better off that I do this, get this done with and get it out of my system. Because it’s something that’s been eating at me for a long time. You know, like other peoples’ families, they have kids, and they have moms, and they have dads, and I don’t--I don’t think a lot of them people have closure on a lot of things that have happened.

DG: Right. JB: And I just feel that by clearing the air with certain things, it puts me at

ease. It also helps me deal with my own demons in my own head, and gives a chance to have closure and say sorry to a lot of people that I’ve never had a chance to.

DG: Kind of like you’re experiencing the closure now with your losses? JB: Yeah. (Exh. N, at p. 26.) Although Grover was clearly not the investigating officer in any potential case, he

even indicated that he would return to talk to Bowles more about his crimes:

JB: Some things I wish some people would have said sorry to me or said bye before they left, and they never got a chance to.

DG: All right. Well, we’ll talk a little bit more a little later. If at any time something really doesn’t feel right, and you’re not able to deal with it, then please, please, I encourage you to follow through with that.

JB: Okay. DG: All right? JB: Thank you. DG: Okay. We’ll talk more. (Exh. N, at p. 27.)

The narrator explained that jail officials—almost certainly Grover and Garcia—asked

Bowles to describe his crimes in writing. (Exh. N, at p. 28.) Grover stated that he and his

partner would start documenting the crimes and contact the District Attorney’s Office.

(Exh. N, at p. 29.) That appears to have happened, as an e-mail indicates that the District

Attorney’s Office was attempting to obtain footage of the show in December of 2010. (Exh.

I, at PD 353 – PD 354.)

If Ali had made another fortuitous find—this time somehow locating Bowles without

the assistance again of Special Handling—it was a prophetic selection. It allowed for not

only for mesmerizing television, but enabled Grover and the Special Handling Unit to

purportedly solve 29 murders—perhaps the greatest investigative accomplishment in the


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history of Orange County. It was certainly the greatest joint media/law enforcement

accomplishment in modern television history, if murders were actually solved.

But as Grover spoke to cameras, viewers certainly would have sensed that Grover

had a familiarity with Bowles that pre-dated the filming. Grover stated in aired footage that

“Jeremy Bowles to me is the ultimate chameleon. He truly is capable of doing just about

anything, including killing people.” (Exh. N, at p. 8.) Later, Grover told the interviewer

that, “Jeremy Bowles is a very sophisticated, very experienced, very dangerous individual.

Jeremy Bowles is ever evolving.” (Exh. N, at p. 10.)

And though it made for great television at the time, nearly five years later it appears

Bowles will never be charged with any of the murders he apparently described. While the

mystery of Bowles’ murder claims may never be fully understood, the truth about how a

number of inmates ended up being chosen to participate in the Lockup program, has finally

being solved.

E. Making Good Television Better—A Not So Coincidental Movement Makes for

Good Informant Work and Even Better Television

The depiction of a production effort in which Special Handling was merely present

for security while the crew would then simply film events as they spontaneously played out

was further undermined by a fascinating jail movement within the show. As with Bowles,

Alberto Briceno (“Briceno”) was filmed for the “Confession” episode in and around his

cell, and was interviewed about his criminal history.

During the episode, the program shifted back and forth from interviews with and

discussions about Bowles and Briceno. The narrator then described an interesting turn of

events:

DG: Most inmates within the county jail are continuously on the move. We do have to screen and rescreen these inmates all the time. Basically, how I look at it is, who can play with who?

NAR: Shortly after moving into his new cell, Briceno discovered his neighbor was an old childhood friend, Jeremy Bowles.

AB: I recognized the tattoos, and then when he got up, I said, “Man, what’s up, G?” He looked at me, and his eyes got all big, and the recognition


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set in, ‘cause the star threw him off, you know, the tattoos that I got. He was like--he got all--he got all excited. You know?

JB: Me and Albert Briceno have been around each other for like the last 22 years. We were neighbors in juvenile hall.

NAR: Briceno and Bowles are not only old friends, they share long criminal histories. They’re considered among the most dangerous and violent inmates in the entire jail. Because of that, they will never have physical contact. Their [sic] housed in a unit where only one inmate at a time is allowed into the common area. (Exh. N, at p. 20.)

In his February testimony, Tunstall insisted that the Special Handling would not have

moved Briceno next to Bowles to facilitate a more compelling episode:

Q. Okay. Did you think as you watched that program that that housing move was made for a housing purpose or for a television show? A. I can only assume for a housing purpose because we wouldn't have moved people specifically for the show. Q. But you would have participated in filming a conversation about a particular inmate that was created for the show, right? A. That I am aware of, we would not have moved anyone specifically for the show. (Exh. B, at p. 6320.)

Grover was not quite as adamant:

Q. Do you remember ever having a discussion with anyone about moving one of the people on the TV show over into another location for the purposes of the show? A. Not to my recollection, no. (Exh. B, at p. 6715.)

Grover was asked specifically about the movement of Briceno next to Bowles:

Q. And at some point Mr. Briceno moves from the Orange County Jail to the Lacy Facility; is that right? A. I don’t recall that. Q. Do you remember a movement that’s talked about in the program where they – A. I don’t. (Exh. B, at p. 6715.)

The questioning continued:

Q. And so as you sit here today, you don’t have a mental image of even seeing on the program Bowles and Briceno being in side-by-side cells in the Theo Lacy Facility? A. In Theo Lacy, I do not have an image of that, no. Q. In any facility where they are together do you have a mental image? A. I believe they were in the I.R.C. side-by-side or in the same sector.


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Q. And was that a movement that took place for the television program? A. Not to my knowledge. (Exh. B, at p. 6715.)

During his testimony, Grover almost certainly remembered everything about what

led to Briceno being placed next to Bowles—despite his claims to the contrary. What were

the chances that a person featured on the program would not only be moved during the

course of the filming 1) into another jail, 2) into the cell next to inmate also being featured

on the exact same program, and 3) that those two inmates would have had a prior

relationship?

F. Killing Two Birds with One Stone?

It turns out that Special Handling may have sought the best of all worlds with regard

to the movement of Briceno next to Bowles. According to Briceno’s TRED, he was

transferred to the Intake Release Center (“I.R.C.”) on August 19, 2010. (Redacted TRED

for Alberto Briceno, dated June 22, 2010, and attached herein as Exhibit Q.) An entry from

that date stated, “RT/IRC PER IRC S/H DUE TO A PENDING INVESTIGATION.” (Exh.

Q.) Moreover, he was placed in L-20, with the note “DO NOT MOVE ^ UNLESS S/H is

notified.” (Exh. Q.)

Based upon the language of the TRED entry and the location to where Briceno was

moved, it certainly appears that Briceno was moved into the company of jailhouse

informant(s) so they could obtain additional evidence from him. In an interview with the

OCDA on March 29, 2013, Garcia discussed the informant tank located in Mod L-20 of the

I.R.C., which he described with the less pejorative term, “reception center:”

Q2: I think you mentioned L-Mod was one location where you had Inmate F wherein you then brought somebody into his proximity?

A: I-I believe so. Initially--let’s see, I’m looking at the list here. [pause] Yeah, see, he was in there in, um, October of 2010.

Q2: In-in Mod-L. A: And--yeah, L-20--it’s no longer that way, but at that time, L-20 is

where we kinda put what we called our reception center. Anybody that was anybody, we put them in there, and we had, um, CI’s in there to be our eyes and ears, to find out what’s going on in hopes of getting a hard candy so nobody else gets hurt…

Q2: Uh-huh.


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A: …um, or assaulted in any type of way. So that was the main sector at the time.

Q2: That you were using for the--bringing people into proximity? A: Yeah. Bring them in, see what’s going on, and then-then we move

them on, put them… (Transcript of interview of Ben Garcia, dated March 29, 2013, and attached herein as Exhibit R, at pp. 20-21.)

Interestingly, the informant in L-20, who was most likely using his skills at

manipulation to extract information from Briceno, was none other than his friend and

television partner, Bowles. While it may seem unfathomable that a supposed serial killer

and master manipulator would also be carrying out jailhouse informant services—and doing

it with cameras around—it can be accurately stated that in the Orange County jails, truth is

stranger than fiction.

While Bowles’ start date as an informant cannot be definitively identified, he

certainly was one—working with both Garcia and Grover. During the renewed Dekraai

hearings, Garcia refused to acknowledge that Bowles was an informant—though his

repeated denials about even the existence of an informant program makes meaningless his

specific denials that particular inmates are informants. Garcia agreed Bowles was “an intel

source,” which appears to be term he uses simply to avoid labeling inmates as informants.

(Exh. B, at p. 6636.)

Garcia, though, stumbled when he was asked whether he recalled “bringing two

confidential informants” to a training class for new deputies. He replied, “The only one I

recall ever talking to them was Bowles.” (Exh. B, at p. 6685.) Garcia then re-retreated on

the subject of whether Bowles was actually confidential informant: “. . . [H]e provided

information on himself and he was quite the manipulator. I mean he knew how to

manipulate people. And that was the whole training was seeing if Bowles could manipulate

these new C.S.A.’s or new Deputy Sheriffs.”6 (Exh. B, at p. 6685.)

Garcia acknowledged that there are benefits that people in the jail can receive for

6 Again, although Garcia insisted he was never manipulated by Bowles, it appears that Bowles has never been charged with any of the twenty-nine murders that he purportedly admitted to on and off camera. (Exh. B, at p. 6589.)


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providing assistance, other than consideration on their case. He was asked whether “you

sometimes give, food extra food to people who are being of assistance?” He answered,

“Yes, sir.” (Exh. B, at p. 6587.) A few questions later he claimed that Bowles “would

probably be the only one” for whom he purchased food. (Exh. B, at pp. 6588-6589.) A few

questions later he said he had possibly bought food for Perez, as well. (Exh. B, at p. 6589.)

Garcia’s then partner, Grover, said “to my knowledge” Bowles has never been an

informant in the jail. (Exh. B, at p. 6714.) However, Grover was shown his own

evaluation, written by his supervisor, which also made reference to him bringing two

confidential informants to a training he conducted. Grover acknowledged that one of the

two people he brought to the training was Bowles, but denied that he was an informant—

despite it being written in his supervisor’s report that Grover brought two confidential

informants. (Exh. B, at pp. 6720-6721.)

Both deputies wanted to hide the truth as much as possible: Bowles was an

established jailhouse informant with whom they both worked. There were a number of

reasons for their disturbing reticence to admit the truth, including that they had

recommended one of their informants for an appearance on a national television program,

where Grover then presented himself capable of obtaining numerous confessions from the

purported sociopath capable of killing (twenty-nine times) or lying without a moment’s

notice—and then returned him to his informant work as soon as soon as the cameras rolled

out. Certainly, they must have known that if it ever was uncovered that they were using this

individual as an informant and giving him special treatment for his services—particularly

with Bowles having claimed that his murders included killing a suspected informant—

would not only be highly offensive to the public but would appropriately raise serious

questions about the ethics and judgment of the deputies.7

Of course, they realized that, if found out, this would damage the credibility of any

7They also knew that it would reflect on the Department as a whole. Grover testified that he was directed to participate in the program by Assistant Sheriff Jay La Fleur. (Exh. B, at p. 6714.)


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claim that the selection of Wozniak by Ali was without their assistance, as well as

corroborate that any and all purported confidentiality concerns related to inmates will

quickly give way when a perceived self-interest can be furthered.

In Dekraai, the court did not order disclosure of Bowles’ TRED records and thus, no

relevant information from the TREDs was available to the defense. However, the Court in

this matter did require that the OCSD disclose Bowles’ TRED file. Significantly, an entry

from his TRED powerfully impeached Garcia and Grover’s denial that Bowles was ever an

informant. The entry on November 10, 2010, written by Garcia, states the following:

S/H REVIEW: ^ RECLASSED TO LVL2/H TOTAL SEP TO HELP FACILITATE ON GOING INVESTIGATION WITH SPECIAL/OPS AND THE DA’S OFFICE. (Redacted TRED entry for Jeremy Bowles, dated September 4, 2010, and attached herein as Exhibit S.)

The TRED could not be any clearer, and was nearly identical to the TRED entry Garcia

made for Moriel discussed above, which indicated that Moriel’s classification level was

being adjusted to allow more effective informant work. In one of the cases he subsequently

worked, Bowles was on the verge of being called to the witness stand before the prosecutor

elected not to call additional informant witnesses in rebuttal.8

It certainly seems unimaginable, even with Special Handling’s track history, that

they would have wished Bowles to continue as an informant after the statements about his

criminal history and Grover’s suggestion that he would lie at the drop of a hat. Nonetheless,

it has become increasingly clear that there is hardly anything an inmate could do that would

disqualify him from working for the government as an informant in Orange County’s jails.

In sum, it appears nearly certain that Bowles was working as an informant for

Special Handling when Grover and Garcia decided that they would recommend him for the

program. This was done knowing that the master manipulator of informant targets would be

8 As noted in Bowles’ TRED, “^ IS A WITNESS IN CASE IN CASE AGAINST I/M JAROSIK…” (Ex. S.) Deputy District Attorney Jennifer Walker elected not to call Bowles as a witness in People v. Mark Jarosik, a few days after identifying him a rebuttal witness. (Selected transcripts in People v Jarosik, attached herein as Exhibit KK.)


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able to use the same skill set to create compelling television. He accomplished the

objective. Grover simultaneously pretended that he and his partner (Garcia) were members

of an elite crime-solving unit within the jail. Cameras rolled as Grover appeared to be

learning for the first time, through skillful interrogation, about the crimes of what appeared

to be the most prolific serial killer in Southern California history.

Within the first few seconds, the program’s narrator stated: “And another inmate

makes the most shocking confession ever heard on Lockup.” The show then cut to Bowles

who said, “They say you’re a psychopath murderer after three people. I’ve done blown that

one out of the water quite a few times.” (Exh. N, at p. 24.) And when the production team

packed up their bags, it was back to the informant business for Bowles and his friends.

G. Deputies Acting as Both Officers and Production Assistants as Security and

Confidentiality Concerns Yield to Good Programming

A careful study of the episode makes clear just how active a role the Special

Handling Unit was having in the programs, and how closely they were working with Ali in

creating the most appealing production possible.

The performance of two key deputies also further corroborates that the decision by

the OCSD to withhold TRED records in this county for 25 years had nothing to do with

concerns for defendants, confidentiality, nor the risk that their disclosure would decimate

law enforcement efforts. The deception about this issue is relevant to the believability of

witnesses in their account of the identification of Wozniak for the Lockup program; the

similar claim that the Special Handling did not direct the contact with Perez; and the

assertion that the case should be dismissed, because members of the Special Handling Unit

and the OCSD cannot be trusted to turn over favorable evidence relevant to the penalty

phase of Mr. Wozniak’s case.

At one point during the program, Tunstall and Grover were filmed in what appears to

be the office of the Special Handling Unit discussing the criminal history of Albert Briceno

(“Briceno”). (Exh. B, at p. 6318, Exh. M.)


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During questioning in the February Dekraai hearings, Tunstall admitted that Lockup

was not fortuitously capturing the two officers in conversation about inmates, who just

happened to be featured on the television program:

Q: But you were there not because – you didn’t come there that particular day because you woke up that morning and said, “I need to look at the Albert Briceno file.” A: Correct Q: You were –you were sort of acting out a role for a television camera, right? A: That I can recall, Yes. (Exh. B, at p. 6318.) The deputies had become actors and production assistants who were working side by

side with Ali to make for more compelling television and a presentation of competent and

talented law enforcement officers. (Of course, the willingness to work this closely with

Lockup as actors and assistants, corroborates that deputies would have little reluctance

about listing the inmates they believed should appear in the program.)

To make the interaction of two officers even more life-like, they obtained Briceno’s

administrative segregation file and displayed it as the television cameras rolled. (Exh. B;

Still Framed Images of Confession Episode, attached herein as Exhibit O.)

In 2010, the defendants and defense counsel in this county were ignorant to the

existence of TRED files and the Sheriff’s Department’s private dialogue that would lead

them to hide officers’ writings contained within for twenty-five years, under the auspices of

a belief that confidentiality concerns trumped all other considerations. In his February

testimony in Dekraai, Tunstall confirmed that a defendant’s administrative segregation file

carried equal confidentiality concerns in his mind to the TRED files:

Q. Okay. And when you talk about kind of the confidentiality of it, you were saying that's a process that you are familiar with, that if you think a question is asked and it calls for the disclosure of confidential information, you would raise a 1040 objection? A. I guess if that did come up, yes. If I was asked a specific question about something that may be in the TRED system, I would claim the 1040/1042 privilege. Q. Is that something, you know, to deal with any situation where you are being confronted with confidential information, with the disclosure of


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confidential information? A. That’s how I was taught. Q. Okay. So when you talk about the TRED system, that’s not the -- the TRED records in computer-generated system, that’s not the only set of confidential records that, in your mind, are encompassed by the classification system, right? A. Yes. That and the ad seg protective custody filings. Q. That’s the same thing, you can’t disclose -- You wouldn’t just disclose an ad seg file or a protective custody file, right? A. If I was asked about it, I would claim the privilege and notify the court of what -- what might be sensitive that I was aware of. Q. All right. When you say ad seg file, what is that? A. As I stated, it is basically a duplicate of the computer system. It is outdated. It deals with movement when an inmate is being transported. It deals with any safety concerns. It is basically a duplicate of the computer system. Q. But it is pretty sensitive information, right? A. Yes, it is. Q. That’s not something you can have out in the public? A. Correct. That’s why it is usually locked away. Q. Okay. And, again, the fear is that it gets out, people learn about it, and it can endanger folks, right? A. Yes. And then, technically, I might be liable for releasing that information without having good cause. Because I have to take into account that part of my job is protecting people. (Exh. B, at pp. 6311-6312.)

However, Grover and Tunstall’ s performance on the program demonstrated that even

though the OCSD and its Special Handlings deputies would have been comfortable forever

hiding even the existence of TRED files, it was perfectly acceptable to have a television

audience look at inmate’s ad-seg file and even an inmate’s TREDs. Tunstall was, along

with Grover, flashing the “adseg” file of Briceno while the production team zoomed in.

(Exh. O.) In fact, if slowed down, a viewer can actually see Briceno’s TRED. (Image of

Briceno’s TRED filmed on Lockup television program, attached herein as Exhibit P.) It is

apparent that there were actually some confidentiality concerns associated with

broadcasting of Briceno’s TRED on national television—but, of course, not for Briceno.

The names of and OCSD officers who made entries in the TRED were intentionally blurred

so that the viewer could not identify the deputies who made them. (Exh. P.)


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The willingness of Special Handling Deputies to display on a television program

Briceno’s file and its contents, of course, decimates the claims that the decades long

concealment of confidential records from defendants was motivated by a misunderstood

belief that the need to protect inmate information was more important than defendants’ right

to due process. This irreconcilable inconsistency in the approach to handling supposedly

confidential records on a television program versus in real life (with defendants’ lives at

stake), furthers the argument that the OCSD simply cannot be trusted to reveal all relevant

communications between the agency and those associated with the Lockup production.

H. Lance Eric Wulff—A Government Witness and Informant Nearly Put on

Display for the American Public

Amazingly, Bowles was not the only inmate working with the government who

Special Handling made available to Lockup, despite the insistence by members of the Unit

(and prosecutors) that protecting the identity and security of witnesses for the government is

paramount. Interestingly, it appears that Bowles (and then Briceno) were moved into

Wulff’s unit, L-20, after Wulff and Bowles were suggested by Special Handling to appear

in the Lockup in June of 2010. When Bowles signed his authorization on July 2, 2010, he

was housed in disciplinary isolation. (Exhibit I, PD 216.) However, as Briceno’s TRED

indicated, he was moved into L-20 of the I.R.C. during the course of the program, and

ended up next to Bowles. Thus, Bowles must have been moved into L-20, as well, after

signing his release. Interestingly, it appears that sitting in the informant tank in L-20, when

Bowles and later when Briceno arrived, was Wulff.

Wulff is listed in the same e-mail from Ali in which Bowles’ name first appear.

(Exhibit I, PD 418.) Interestingly, his name also can be found within Bowles’ TRED; a

November 2010 entry documents that both inmates requested that they “dayroom” together.

(Exh. S.) Lockup’s own Facebook posts, as well as an NBC website promotion about the

program, corroborate that Wulff was filmed for the program, though footage of him was

never show in any of the aired programs. (Lockup Extended Stay: Orange County Jail,


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Facebook, available at https://www.facebook.com/msnbcLockup/

photos/a.10150154829420685.287931.26973340684/10150154829730685/; Join the Crew

of Lockup for a Closer Look Inside the Orange County Jail, NBC News, available at

http://www.nbcnews.com/id/42613117/ns/msnbc-documentaries/t/join-crew-lockup-closer-

look-inside-orange-county-jail/#.VUtrRGd0w5s.)

1. People v. Lance Wulff (09ZF0062)

a. Summary of Charges

On May 29, 2009, Lance Wulff was indicted by a grand jury on charges of

solicitation to commit a crime (Pen. Code § 653f(a)), street terrorism, (Pen. Code §

186.22(a)), two counts of robbery (Pen. Code § 211-212.5(a)-213(a)(1)), burglary (Pen.

Code § 459-460(a)), and assault with a weapon or force likely to produce great bodily injury

(Pen. Code § 245(a)(1)). (Minutes People v. Wulff, Super. Ct. Orange County, No.

09ZF0062, attached herein as Exhibit T.) Additionally, as to the solicitation, assault, and

burglary charges, enhancements were alleged, namely that those crimes were committed for

the benefit of a criminal street gang (Pen. Code § 186.22(b)(1)). (Exh. T.) On November

17, 2009, before trial, Wulff entered a plea deal with the prosecutor in his case, Senior

Deputy District Attorney Jim Mendelson. (Plea Agreement in People v. Wulff, Super Ct.

No. 09ZF0062, attached herein as Exhibit U.) In exchange for Wulff’s testimony against

his co-defendants, Mendelson agreed to recommend a sentence of 2 years and 8 months.

(Exhibit U, at pp. 1-2.) Though he agreed to that deal in 2009, Wulff was not sentenced

until February 25, 2011. (Exh. T.)

b. Summary of the Case

On February 16, 2009, Stephen Clevenger (“Twister”), Mitchell Highley

(“Highley”), and Brian Sawin (“Sawin”) broke into Kristy Reed’s (“Reed”) apartment.

(Reporter’s Transcript (Grand Jury), People v. Wulff, Super. Ct. Orange County, No.

09ZF0062, (May 28-29, 2009), pp. 5-6, attached herein as Exhibit V.) Reed lived with her

boyfriend, Adam Goldberg (“Goldberg”). (Exh. V, at p. 5.) Upon hearing the commotion

of the break in, Goldberg ran out of his bedroom to investigate. He saw one of the men


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flash what he believed to be a weapon and ran into the bathroom to hide. (Exh. V, at p. 5.)

Sawin proceeded to Reed’s bedroom and after throwing her off her bed, duct-taped her and

then assaulted her with a sap (a metal padlock inside of a sock). (Exh. V, at pp. 5-6.)

Goldberg ran out of the bathroom and tried to leave the apartment, but was stopped by two

of the men just as he stepped out. (Exh. V, at p. 6.) Goldberg was punched, kicked, and

dragged back into the apartment. (Exh. V, at p. 6.) A neighbor noticed Goldberg being hit

and dragged. (Exh. V, at p. 6.) Fearing the arrival of the police, Twister, Highley, and

Sawin ran out and drove away. (Exh. V, at p. 6.) They took a laptop computer and a

PlayStation 3 from the apartment with them when they left. (Exh. V, at p. 6.)

c. DDA Mendelson’s Presentation of Wulff’s Participation to the

Grand Jury

According to the prosecution, Lance Wulff ordered the burglary and assault of Reed

and Goldberg. (Exh. V, at p. 5.) In February of 2009, Lance Wulff was the leader of the

Orange County Skins (“OCS”), a white supremacist gang which, as their name suggests, is

located in Orange County. (Exh. V, at p. 4.) Senior Deputy District Attorney Jim

Mendelson argued to the grand jury that Wulff ordered the assault based on the solicitation

of an individual named Roarke Ocampo (“Ocampo”).9 Mendelson argued that the assault

was “criminal street gang activity,” and that “this was obviously an OC Skins crime.” (Exh.

V, at p. 11.) He argued that Ocampo, “paid the leader of the Orange County Skins to have

his homeboys exact some revenge for him, conduct a hit, a home invasion robbery that

actually took place.” (Exh. V, at pp. 1, 4.) Mendelson reiterated the level of Wulff’s

involvement as the leader of the entire plan, including the assault, stating that, “Wulff spent

the money received from Ocampo on himself, and arranged to have three of his homeboys

9 According to the prosecution, Ocampo was not affiliated with OCS. Ocampo and Reed were best friends up until January of 2009. That January, Ocampo and Reed had a falling out after she accused him of stealing from her, and cut ties with him. After that, he became very angry with her began threatening her over the phone, to the point where she changed her phone number. (Exh. V, at pp. 46-47.) Ocampo and Wulff knew each other through a mutual friend. (Exh. V, at p. 146.)


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accomplish this hit.” (Exh. V, at p. 4.) Mendelson elicited testimony that Wulff provided

“direction” on the hit, and provided the others with information about where to go and

when. (Exh. V, at p. 26.) Furthermore, he argued in his summation that Wulff, “clearly

aided and abetted and instigated this thing with full knowledge of what’s going on.” (Exh.

V, at p. 11.)

d. Wulff Makes a Deal with the OCDA

On November 17, 2009, Lance Wulff entered into a plea agreement with the OCDA.

(Exh. U.) The agreement provided in relevant part that:

1. The People shall recommend to the court the acceptance of defendant Wulff’s [sic] plea of guilty to one felony count of Solicitation of Aggravated Assault (by means or force likely to produce great bodily injury) (Penal Code Section 653f/245), and a misdemeanor count of Street Terrorism (Penal Code Section 186.22(a), as well as admitting his prior strike conviction 01HF0716. The People will move the remaining counts and enhancements in the felony indictment. 2. The People will agree to defendant Wulf [sic] being sentenced to a determinate term of 16 months on the Solicitation count, doubled as the result of his prior strike conviction, for a total term of 32 months in state prison. . . . In consideration of the mutual promises and subject to the conditions herein, Lance Wulf [sic] agrees to the following: 1. Lance Wulf [sic] shall also give full and complete truthful testimony at any and all court proceedings pertaining to the events in San Clemente, California on or about 16 February 2009 involving a home invasion robbery; along with the events which led up to this incident as well as the events following the robbery. (Exh. U, at pp. 1-2.)

Wulff and Mendelson signed the agreement. (Exh. U, at p. 3.) In 2010 and 2011, three of

his co-defendants pled guilty.10 On August 29, 2010, Clevenger committed suicide while in

10 On June 22, 2011, Mitchell Highley and Brian Sawin pled guilty to all counts. On July 8, 2011, both were sentenced to 15 years to life in state prison. (Minutes in People v. Highley, Super. Ct. Orange County, No. 09ZF0062, attached herein as Exhibit X; Minutes in People v. Sawin, Super. Ct. Orange County, No. 09ZF0062, attached herein as Exhibit Y.) Roarke Ocampo pled guilty to robbery, assault, and filing a false report on September 28, 2010.


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custody. He hanged himself after what he called a “bad day in court.” (Eric Hartley,

Lawsuit in Jail Suicide Can Move Forward, OC Register, Jan. 11, 2014, attached herein as

Exhibit W.)

The four corners of the agreement Wulff signed with Mendelson compelled him to

offer testimony regarding the events leading up to the robbery and assault with which he

had been charged.

2. Wulff Testifies for the Prosecution in Another Case Just Months After

Being Filmed for Lockup: People v. Wayne Marshall (10ZF0097)


On November 30, 2010, Wayne Marshall (“Marshall”) was indicted by a grand jury

for attempted aggravated assault (Pen. Code §§ 664(a)-245(a)(1)), extortion by force or

threat (Pen. Code §§ 518/520), and street terrorism (Pen. Code § 186.22(a)), along with two

enhancements alleging the crimes were committed for the benefit of a street gang. (Minutes

in People v. Marshall, Super. Ct. Orange County, No. 10ZF0097, attached herein as Exhibit

AA.) The case is still open. (See Exh. AA.)

b. Wulff’s Testimony in Marshall Grand Jury

Wulff entered the Orange County Jail for robbery charge discussed above, on May

29, 2009. (Reporters Transcript (Grand Jury), People v. Marshall, Case No. 10ZF0098

(Nov. 30, 2010), p. 105, attached herein as Exhibit BB.) At that time, Wayne Marshall was

the leader of the Aryan Brotherhood inside the Orange County Jail. (Exh. BB, at p. 105.)

Wulff was housed in the M-Mod section of the Theo Lacy facility, along with other

members of white supremacist street gangs, all of which reported to the Aryan Brotherhood

leadership within the Orange County Jail. (Exh. BB, at pp. 101-104, 107.) Jason

Fenstermacher (“Fenstermacher”) served as the key-holder of Marshall’s organization for

the M-Mod tier where Wulff was housed. (Exh. BB, at p. 113-114.) Shortly after entering

(Minutes in People v. Ocampo, Super. Ct. Orange County, No. 09ZF0062, attached herein as Exhibit Z.) That same day he was sentenced to 12 years in state prison. (Exh. Z.)


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Theo Lacy, Wulff observed an incident in which Fenstermacher did not pass along to

Marshall a portion of contraband, methamphetamine that had been smuggled into the jail by

Charles Hull (“Hull”). (Exh. BB, at pp. 115-117.) In addition, Fenstermacher had allowed

a lower-ranking gang member, Hull, to openly criticize Marshall. When Fenstermacher

asked Hull if he had sent a portion of the smuggled drugs to Marshall, Hull said “fuck

Bullet.” (Exh. BB, at pp. 115-117.) These actions violated gang policy. (Exh. BB, at pp.

115-117.)

According to Mendelson, despite Wulff’s alleged disassociation from the Orange

County Skins and his abdication of power as leader of the organization, he was still viewed

as a potential political threat by Fenstermacher. (Exh. BB, at pp. 101, 117.) As a result,

Wulff was involved in a power struggle with Fenstermacher. (Exh. BB, at pp. 117-119.)

This power struggle landed Wulff on a kite to be assaulted; as a result, deputies marked

Wulff to be moved to segregated housing. (Exh. BB, at pp. 119-120.) When Wulff did not

follow gang protocol and required officers to forcibly extract him from his cell, he further

deepened the confrontation between himself and Fenstermacher. (Exh. BB, at pp. 120-121.)

Sometime later, Wulff was housed during a court date with his long time gang

associate and friend, Stephen Clevenger (“Clevenger”). (Exh. BB, at pp. 121-122.) Wulff

discovered that after he had been moved to total separation, Clevenger had been moved into

Wulff’s former housing assignment in M-Mod with Fenstermacher and Hull. (Exh. BB, at

p. 122.) While the two were being housed in the courthouse facility, Clevenger informed

Wulff that because of his association with the Orange County Skins, he had experienced a

similar power struggle with Fenstermacher and had since been moved to total separation as

well. (Exh. BB, at pp. 122-123.) As the two shared stories of their time in M-Mod, Wulff

told Clevenger about the incidents he had observed; specifically, that Fenstermacher and

Hull had broken gang protocol by openly criticizing Marshall and not passing along a cut of

drugs to him. (Exh. BB, at pp. 123-124.) In an effort to retaliate against Hull and

Fenstermacher, Clevenger later reported this information back to Marshall, with whom he

shared an adjoining cell in the P-Mod of the Orange County Jail at that time. (Exh. BB, at


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pp. 124-125.) Wulff testified that he was not sure at the time of his conversations with

Clevenger whether he was still required to “play active” and convey to Clevenger that he

was an active gang member, because he had not yet signed his agreement for consideration

in his own case. (Exh. BB, at p. 124.)

Mendelson told the grand jury that the information Wulff provided to Clevenger,

which was later provided to Marshall, was evidence of Marshall’s intent to extort money

and arrange an assault on Charles Hull, who had scorned him. (Exh. BB, at pp. 125-126.)

Mendelson called Lance Wulff to testify during the grand jury proceedings against Marshall

in order to establish this intent. Both Mendelson and Wulff went out of their way to make

clear to the grand jury members that Wulff’s testimony was not motivated by any

compensation or consideration from the District Attorney’s office. (Exh. BB, at pp. 99-101,

182-183.) Instead, Wulff claimed he was giving up his “convict role” and “paying the

price” for his life as a gang member. (Exh. BB, at p. 101.) Mendelson reinforced this in his

summation on the day Wulff testified, telling the grand jury that “[h]e explained why he is

testifying. He earns the consideration he got in that other case. I submit to you the only

thing he got in this case, I think he got a coca cola during a jailhouse visit, and I will

disclose that to you.” (Exh. BB, at pp. 182-183.)

c. Prosecutor Minimizes Wulff’s Criminal Conduct Once He

Becomes a Government Witness

Mendelson provided the grand jury with information about Wulff’s criminal past,

both in the form of his summation and testimony from Wulff. He described to the jury why

Wulff was in prison. Mendelson stated that, “Wulff is currently in custody on a home

invasion robbery.” (Exh. BB, at p. 15.) Mendelson also stated that:

He [Wulff] didn’t actually go into the house and participate in the robbery, but he played a role in that in telling some O.C.S, an O.C.S. friend of his, somebody is looking for some people to help him go get some property. There is a whole lot more mission in that it wasn’t just to get some property, it was a blown home invasion robbery. Wulff was charged with it because he did play a little bit of a role in instigating. (Exh. BB, at pp. 15-16.)


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However, when Mendelson was prosecuting Wulff, he argued that Wulff did much

more than simply “tell an O.C.S. friend of his” about somebody needing some property

recovered. Quite the contrary, Mendelson made the case that Wulff directed his

subordinates of to perform a robbery and assault for the benefit of the O.C. Skins. (Exh. V,

at pp. 1, 4, 11, 26.) Furthermore, when prosecuting Wulff, Mendelson asserted that Wulff

played far more than “a little bit of a role” in instigating to home invasion. Mendelson

formerly argued that Wulff, as leader of the OC Skins, “instigated” the robbery and assault

“with full knowledge of what’s going on.” (Exh. V, at p. 11.) Lastly, the notion that the

break in was a “blown home invasion” is disingenuous, at best. At Wulff’s grand jury,

DDA Mendelson took every opportunity he had to refer to the assault as a “hit,” telling the

jury the assault was done on orders from Wulff for the benefit of the O.C. Skins. (Exh. V,

at pp. 1, 4, 11.) There was nothing “blown” about what happened when Mendelson was

prosecuting Wulff. Wulff planned and ordered all of it. But there had been a change of

circumstances: the government no longer wanted the evil Wulff, with the prosecutor even

arguing that when Wulff was a member of the OC Skins he was an agent for reform: “And

he actually took these OC Skins and tried to get them off drugs, tried to get them gainfully

employed.” (Exh. BB, at p. 16.)

Wulff’s criminal history appeared relatively minimal, as presented by Mendelson:

Mendelson only elicited the following testimony about Wulff’s criminal past, aside from the

robbery discussed above.

Q. And what was the prior strike for? A. I believe it was for a terrorist threat. Q. And additionally do you have a record that includes the sales of controlled substances? A. I do. Q. And you have done prison time? A. I have. (Exh. BB, pp. 99-100.)


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This presentation begs the question of what Wulff may have said about himself,

when he was interviewed by Lockup—and if it was requested that the episode be pulled,

why that took place.

I. Wulff and Bowles Work Together as Informants

Additional evidence that Wulff (and Bowles) had not just assisted Special

Handling by appearing on Lockup, but were working as informants within the jails,

was their efforts within the jail to obtain statements from a murder defendant named

Derek Adams (“Adams”).

1. People v. Derek Adams (11ZF0112)


On May 25, 2011, a grand jury indicted Derek Adams on charges of Murder (P.C. §

187(a)), Grand Theft (P.C. § 484-487(c)), Assault with a Deadly Weapon or force likely to

produce great bodily injury (P.C. § 245(a)(1), Burglary (P.C. § 459-460(a)), and two

enhancements for Discharging and Personally using a Firearm (P.C. § 1222.53(d) / P.C. §

12022.5(a)). (Minutes in People v. Adams, Super. Ct. Orange County, No. 11ZF0112,

attached herein as Exhibit CC.) On August 22, 2012, a jury found Adams guilty of Second

Degree murder, Grand Theft, Assault with a Deadly Weapon or force likely to produce

great bodily injury, and Burglary. (Exh. CC, at p. 1.) The jury also found true two

enhancements for discharging and using a firearm in the commission of the murder. (Exh.

CC, at p. 1.) On November 30, 2012, Adams was sentenced to 46 years to life in state

prison. (Exh. CC, at p. 1.) On appeal, Adams argued that the court erroneously excluded

evidence of statements he made when officers initially apprehended him after his flight.

(Exh. CC, at p. 1.) On March 17, 2014, the court of appeals affirmed his conviction. 11

11 Marissa Bilotti was also charged with the murder of Heintz via a grand jury indictment issued on September 20, 2011. On December 5, 2014, Bilotti pled guilty to Voluntary Manslaughter, Assault with a Deadly Weapon, and Burglary. The Honorable Thomas Goethals sentenced Bilotti to 8 years and 4 months in prison. (Minutes in People v. Bilotti, Super. Ct. Orange County, No. 11ZF0123, attached herein as Exhibit DD.)


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b. Summary of the Case

On the morning of October 22, 2010, Adams was at his home in Huntington Beach.

(People v. Adams (Mar. 17, 2014, G047855) 2014 Cal. App. Unpub. LEXIS 1852, p. 2,

attached herein as Exhibit EE.) His ex-girlfriend Lauren Schneider (“Schneider”), with

whom he maintained an intermittent relationship, was at the home of Cody Mosher

(“Mosher”) in Newport Beach. (Exh. EE, at p. 1.) Adams sent the following text to

Schneider: “I’m driving to Newport. I’m going to beat the fuck out of both of you.” (Exh.

EE, at p. 3.) Adams also texted his then-girlfriend Marissa Bilotti: “I need your backup.”

Exh. EE, at p. 3.) Adams and Bilotti drove to Mosher’s house. They kicked in the front

door. Adams beat Mosher with his fists and kicks and inflicted a nonfatal puncture wound

in Mosher’s chest with a knife. (Exh. EE, at p. 3.) Adams found Schneider and hit her in

the head with a closed fist numerous times, shoved her, and put a knife to her throat. (Exh.

EE, at p. 3.) He took Mosher’s cell phone and money from Schneider’s purse. Adams and

Bilotti then left the scene. (Exh. EE, at pp. 3-4.)

Schneider and Mosher drove to the home of Terri Garrett (“Garrett”) and her

husband Gregory Heintz. (Exh. EE, at p. 4.) Heintz was in the past a member of PEN1, a

white supremacist gang. Schneider and Mosher told Heintz what Adams had just done to

them. Garrett was upset by what happened to Schneider, and though Heintz did not know

Mosher or Adams, Heintz was upset because Garrett was upset. (Exh. EE, at p. 4.) Adams

told Schneider over the phone, “come get your money, bitch” and said that he was at Murdy

Park. (Exh. EE, at p. 5.)

Bilotti drove Adams to the park. When Adams got out of the car, he was carrying a

gun. (Exh. EE, at p. 5.) Bilotti parked her car nearby with a towel covering her license

plate. Schneider, Heintz, Garrett, and Garrett’s friend Nicole arrived at the park parking lot.

Heintz, who was unarmed, exited the car. Adams and Heintz approached each other. They

walked side by side for a distance of 30 feet, and they were arguing the entire time. (Exh.

EE, at p. 5.)


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Adams then turned to Heintz and shot him in the stomach at close range with a

revolver. Heintz grabbed his stomach with both hands and dropped to the ground. Adams

ran away with the gun. (Exh. EE, at pp. 5-6.) Bilotti picked him up, removed the rag from

her license plate, and drove away. (Exh. EE, at p. 6.) Witnesses who had seen the car

driving away wrote down the license plate number and gave it to the officers who arrived at

the scene. (Exh. EE, at p. 6.) Bilotti and Adams were pulled over by an officer a few

blocks from the park shortly thereafter. (Exh. EE, at p. 6.) Both were taken into custody.

At that point, Adams and the officer had an exchange that was excluded from trial.12 Heintz

died that afternoon as a result of the gunshot wound to the abdomen. (Exh. EE, at p. 7.)

c. Lance Wulff’s Testimony At Adams’ Grand Jury Proceeding

On May 25, 2011, Lance Wulff testified at the grand jury proceeding in Adams’

case. (Reporter’s Transcript (Grand Jury), People v. Adams, Case No. 11ZF0112 (May 25,

2011), attached herein as Exhibit FF.) Wulff testified that from 1998 until 2010 he had

been associated with, and ultimately became the leader of the Orange County Skins, a white

supremacist group. (Exh. FF, at p. 158.) He had since dropped out. (Exh. FF, at p. 158.)

Wulff knew the victim Gregory Heintz through his gang affiliation. (Exh. FF, at p. 158.)

12 [Officer]: ** in the car. [Defendant]: He came running at me with a gun and I beat him to the punch. [Officer]: He who? [Defendant]: Rooster, the guy. [Officer]: Okay. [Defendant]: The guy that I shot, he was gonna, said he was gonna come to my house slit my family's throat, I, I, I won't do, I, I, stole my dad's [Officer]: You know I'm not asking you any questions, right? [Defendant]: I'm yeah, I'm just telling you the ** man, [Officer]: Okay. [Defendant]: I was scared for my family's life, he said fucking, met up with me ** fucking ** I'm gonna slit you and your family's throat, I stole my dad's fucking gun, I met up with him and he came running at me ** ** he's telling me ** He would have shot me if I didn't shoot him. (Exh. EE.)


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Wulff testified that in October of 2010, he was incarcerated at Orange County Jail, in

what is termed “total separation” from other inmates. (Exh. FF, at p. 159.) He and Adams

met in jail because they were housed in the same sector. (Exh. FF, at p. 161.) An extended

portion of the grand jury transcript, when closely examined, corroborates the joint informant

efforts carried out by Wulff and Bowles:

Q. Now, Mr. Wulff, when you first saw Mr. Adams you didn't know what he was in there for, and what if any steps did you take to befriend Mr. Adams? A. Well, he had just come up and he was actually talking to my neighbor about what he was there for. Q. What is your neighbor's name? A. Jeremy Bowles. He had been talking to him about his charges, that he was new to the whole jail system, and basically saying, I think I am going to be in jail for a long time, and that kind of stuff. And me and Jeremy Bowles Were really close. And he knocked on the wall, pounded on the wall to get my attention. And I came up to the door and I asked him what his charges were. And he said, I am here for murder. And I said, oh, you are the one that killed my homeboy rooster. And what was Mr. Adams' reaction? A. He said, word for word, you know about that? I said, I know about everything. And that was how our conversation started. Q. Okay. Did you let Mr. Adams know that the reason you might know about everything was because of your status with Orange County Skins? A. Yeah. He said, how did you know about that? I just said, you know what, from the circles that I run in, you know, people tell me just about anything that has to do with any of the skinheads in Orange County. I told him what my association with the Orange county Skins was. I told him that I was in charge of the gang. That I had known Rooster. And, you know, he was starting to get a little bit concerned because he was placed in protective custody because of it. Q. Right. So here is a guy who is afraid of Pen1, Skins or any other white supremacist group going to come after him for killing Rooster? A. Right. Q. And here he is having a conversation with you? A. Correct. Q. Okay. And did you do something to ease his mind? a. The following day I did. Q. Okay. But not at the time? A. Not at the time. Q. Okay. Did you proceed to question Mr. Adams about killing Rooster?


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A. I did. Q. And what did you say to him? A. I told him that, I said, look, the deal is you explain yourself now and you won't have to worry about it in the future. If it was a personal issue, then it can stay a personal issue. But if you are going out to make a play to attack skinheads, they are going to attack you back. Q. So you wanted to know if this was a gang thing against all skinheads? A. I wanted to know what the motive was behind killing him, because rooster was one of the last people that I would ever think to be shot in like a gang fight type situation. (Exh. FF, at pp. 164-165.) Q. And you wanted to know if it was a skinhead thing, because other skinheads might be in danger? A. Yes. Q. As opposed to a personal thing? A. Yes. Q. You explained that to Mr. Adams; is that true? A. Yes. Q. And what is his response? A. He said, I probably shouldn't talk to you about it, because my lawyer told me not to. I said, okay, good luck taking your chances. Q. And then what happened? A. Then he explained everything. (Exh. FF, at pp. 165-166.)

A better understanding of how Wulff (and Bowles) tricked Adams into confessing can be

found by examining the interview of Wulff. On November 9, 2010, by Balleste, Special

Operations Investigator William Beeman and OCDA Investigator David Melnyk,

questioned Wulff about the confession and how he elicited it:

Okay, uh, I’ve been, in the sector that I’ve been, I’ve been in there for awhile. Uh, I knew uh, Rooster, when he was killed, uh before. I also have lots of prior uh, dealing with all the skinhead gangsters in Orange County. Uh, I had heard about Rooster being killed, probably a day or two after it, it happened. And uh, the uh, the guy you’re prosecuting, was brought into our sector. And uh, he had uh, he kind of looking for a friend. He kinda of outlined everything that happened that day. Uh, at first he said, he goes, well, I probably shouldn’t talk to you about it. I said that’s okay. I said, but understand what had happened to Rooster, okay? Uh, he doesn’t really look like the type of kid that would run around with Rooster. So, you know, I kind of asked him. I said uh, you know, how did that happened? He goes, well, I probably shouldn’t talk to you about it. I said that’s fine. Listen, but if you


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want to watch your back for the rest of your life. You know, with the skinheads chasing you, over something that could have been a personal issue, you know? By all means. He goes, well, this is what happened… (Transcript of interview of Eric Lance Wulff, in People v. Adams, dated November 9, 2010, p. 534, attached herein as Exhibit GG.)

Later Wulff explained further why he believed that Adams talked to him about his

case, “He was kind of skeptical about even talking about the case. Uh, probably for this

reason, but he was skeptical about talking about the case. And, he was opening it up

pretty much thinking that I was gonna be the one that protected him.” (Exh. GG, at p.

14, emphasis added.)

He went on to describe how because Adams was in protective custody at the time of

their contact, “[n]o one in there really is talking to him, you know?” (Exh. GG, at p. 14.)

He made following comment about how he and Bowles recognized Adams’ vulnerability

and used it to convince their target to open up:

He’s kinda an outcast and he had, there was also my neighbor, uh Bohls [sic] Bohls [sic] is the one that invited him over. You know Bohls? Yeah, we won’t’ talk about him. Actually, he pulled him over to the cell and started talking to him. Yeah, that’s probably what I should tell you. That’s, that’s how he came over, was Bohls called him over, uh, ‘cuz he kinda stood out like a sore thumb. We, you know, we were kinda joking and heckling him a little bit and uh, Bohls [sic] had asked him. He’s all, so what are you hear [sic] for? He goes, uh looking at 57 to life, that what the newspaper said. And I’m, I looked at him I said, were you looking at 57 to Life for? For a 187. I was like uh, you’re the one that killed Rooster, huh? And he goes, uh, he was gonna kill me first. And I said, really? And that’s what kinda launched the whole… (Exh. GG, at pp. 545-546.)

During their introduction at the cell door, Wulff said the following to Adams:

I was like, did, do you know who I am? And he goes, uh no, who are you? I was all, I was all, my name’s Wolff [sic], Orange County Skins. And he says, uh okay. I was like you never heard of me? He goes, no. I was like, I was pretty much the one running the show for everyone out there. You know, I was like, I know all those people. It’s like anything that goes on out there, I’m usually the first to find out about it, and, that’s kinda like what… (Exh. GG, at p. 546.)


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The interview further clarified that Wulff was using an informant technique to extract

confessions that has been used by informants in other local cases, as discussed in the

Summary Motion to Dismiss. (Exh. A, at p. 79.) This method of convincing a target to

speak about his case by suggesting that the inmate could face harm from members of a gang

if he is unwilling to share the facts of the crime, was deemed unconstitutional in Arizona v.

Fulminante (1991) 499 U.S. 279; 111 S. Ct. 1246.

As the interview with Balleste and others continued, Wulff provided additional

details about how he and Bowles carried out this scam to perfection. Wulff said that he did

not initially tell Adams what benefit he would get from speaking with Wulff. Instead, he

said “…I let him go home with it.” (Exh. GG, at p. 547.) Then Wulff described further

what happened the next day:

Uh, that, at first he just kinda said, oh okay. And I kinda hit him up a little bit about it and then he went home. The next day he came downstairs, He came up to the door and I told him, I said look. I said if you want to protect yourself, a couple of these guys later on down the road we need to know the story now. (Exh. GG, at p. 547.)

Wulff had played it to perfection—giving Adams time to think and demonstrating that the

informant whom Adams did not know was actually despised by his former gang for turning

“snitch,” was very much at ease in his supposed power position. Bowles gave Adams food

at his door the next day when he walked up. Wulff told him after he made the statement

about his role in the crime, “[w]ell I’ll tell you what I’ll do. I said tomorrow I’ll make a

phone call. I’ll talk to some people and see about, I’ll see about you know, what your status

is gonna be.” (Exh. GG, at p. 548.) Wulff said that “[Adams] turned about and went back

to lockup. I haven’t talked to him since.” (Exh. GG, at p. 548.)

He also clarified how the two man effort worked to convince Adams to confess:

…Uh, Bohls[sic] is kinda, he was kinda like my cheerleader pumping him up a little bit in the background, you know. Making him laugh. I was getting the story and uh, Bohls[sic] was kinda making him real comfortable about talking,


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about you know, the whole time making him laugh in the background. (Exh. GG, at p. 549.) As with many Orange County jailhouse informant cases the prosecutor emphasized

that she was not promising anything and the informant affirmed he was not requesting

anything in return. (Exh. GG, at p. 549.) Wulff stated that he had changed a lot since he

arrived in jail, and “these guys have been pretty straight with me, you know? I just figured

they would want to know what was going on.” (Exh. GG, at p. 549.) Balleste later said,

“And whether we give you anything in exchange or not, as I said we’re not making any

promises . . . .” (Exh. GG, at p. 555.) Wulff said that conversation occurred just one day

before the interview by Balleste and her team. (Exh. GG, at p. 547.)

Over the course of a couple of conversations, Adams purportedly confessed the

details of his crime to Wulff. Wulff provided the Adams prosecution team with damaging

testimony about the defendant’s motive for killing Heintz, as well as details about the crime.

According to Wulff, Adams said that “another kid named Cody” was running around

with his ex-girlfriend, and Adams was upset about it. (Exh. FF, at p. 166.) Cody and

Adams got into an argument over the phone. Adams then kicked in the door, beat up Cody,

and “pocket checked him” by taking his cell phone and his pills. (Exh. FF, at p. 166.)

Adams claimed that Cody was a skinhead and Heintz had been his mentor. Thus, Heintz

became involved once Cody told him what had happened. Adams said that Heintz told

Adams that he was going to “run steel” on him. (Exh. FF, at p. 168.) Adams assumed that

meant there was going to be a gunfight. At that point in the conversation, Wulff explained

to Adams, “Well here’s the deal. That doesn’t mean that he is going to get a gun . . . [‘Run

steel’] means that he is going to bring a knife.” (Exh. FF, at p. 168.) Adams looked at

Wulff and said, “Whoops, oh well.” Wulff testified that he was upset that Adams did not

care about what he had done stating, “that’s what really kind of set me off and I got really

upset when that happened.” (Exh. FF, at p. 168.) Adams told Wulff that Heintz did not

have a gun, but Adams thought Heintz had a gun and “they could have gotten rid of it.”

(Exh. FF, at p. 169.) Adams said that when he saw Heintz at the park, he threw Cody’s pills


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and phone on the ground, and Heintz was still coming towards him, so Adams pulled out

the gun, shot him, and ran. (Exh. FF, at p. 169.) Wulff explained that when Adams said,

“Whoops, oh well,” his demeanor was “so nonchalant, I can’t change it, why dwell on it. I

mean, I just thought that was kind of shallow.” (Exh. FF, at p. 172.)

After meeting with Balleste sometime in early November, Wulff and Adams had

another conversation about Adams’ girlfriend Marissa Bilotti’s involvement in the shooting.

(Exh. FF, at pp. 176-178.) Wulff asked Adams if Bilotti knew he was going to shoot Heintz

at the park. Adams expressed surprise that she was also in jail. Adams told Wulff that

Bilotti drove him to pick up the murder weapon and then drove him to the park. He did not

want to say more than that. (Exh. FF, at p. 177.) Wulff stated his interest in the outcome of

the case was “Justice. Justice be served, if that’s what it calls for.” (Exh. FF, at p. 179.) He

also stated that he had no pending cases at that point. (Exh. FF, at p. 181.)

d. Prosecutor’s Presentation of Wulff at Grand Jury Proceedings

DDA Balleste made no effort to give any background on Wulff’s criminal past, or his

past informant efforts. The only testimony Balleste elicited from Wulff about his past in the

OC Skins was the following:

Q. Now sir, as a result of your association with the Orange County Skins and the sort, were you incarcerated at the Orange County Jail in October of 2010? A. I was. (Exh. FF, at p. 159.)

Balleste did not inform the jury about any of Lance Wulff’s prior convictions, about his

violent past, about his necessarily violent management of the OC Skins, about his deal with

the Mendelson for the home invasion robbery, or about the fact that Wulff had agreed twice

before Adams to testify for the prosecution. On the other hand, Balleste did inform the

grand jury that Wulff was “gainfully employed” and leading “a normal citizen’s life.” (Exh.

FF, at p. 181.) She elicited testimony that Wulff had no expectations for testifying, and that

he had no cases pending. (Exh. FF, at p. 181.) Of course, Wulff was still facing prison time

when he was gathering the information against Adams and unquestionably had an interest


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in October of 2010 to provide information to law enforcement, even if that interest did not

culminate in a reduced sentence.

And the grand jury also lacked the slightest clue that the two inmates—Wulff and

Bowles—were not just interested inmates who decided to work together to frighten Adams

into talking, but were jailhouse informants putting in work on a premier target in one of the

jail’s informant tanks. And, of course, the grand jury did not know that Wulff spoke with

Lockup before his piece was apparently pulled.

J. Another Not So Coincidental Media Contact with Wulff, and

Corroboration As to Why the Government Wanted Wulff’s Lockup

Interview to Disappear

It is difficult to believe that ultimately Ali, Grover or Garcia will continue to

pretend that Wulff (or Bowles) were identified by Ali without the suggestive powers

of a Special Handling deputy or two. But any such false claims are eviscerated by a

version of Wulff’s life story, which showed up in the Orange County Register.

On October 17 and 18, 2012, the Orange County Register published two in a series

of six articles on the white supremacist movement in Orange County. (Whiting, Teen with

Something to Prove Finds Home in Racist Gang, OC Register, October 17, 2012, attached

herein as Exhibit HH, and Whiting, White Gang Leader Leaves Crime and Hatred Behind,

OC Register, October 18, 2012, attached herein as Exhibit II.) The two articles featured

snippets of an interview with an individual claiming to be an ex white supremacist. In the

articles he is simply called “Tom.” (Exh. HH; Exh. II.) An analysis of the article make is

clear that that “Tom” is none other than Wulff. Wulff talked about his own case, stating

that he was accused of being the “mastermind behind the home-invasion robbery and

beating.” (Exh. II.) The article stated that “[s]omehow, Tom caught a break. The case fell

apart. Two of the suspects pleaded guilty. Another hung himself in jail.” (Exh. II.) Indeed

Wulff was charged in a home invasion robbery and one of the defendants hung himself.

But, of course, he was not telling the complete truth. He had made his own break, by

turning on his co-defendants and getting a significantly reduced sentence despite being the


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mastermind of the crime—at least that he was how he was depicted before he started

helping the government.

The two articles dealt with Wulff’s rise within and exit from the Orange County

white supremacist scene. In the articles, Wulff described his criminal history in

considerable detail, including his past selling and tampering with firearms. The article reads

in part:

He dealt meth. And he dealt illegal firearms. Making the weapons full automatics? “Grinding out serial numbers, drilling the barrels to erase ballistic markings.” We stare at one another a moment. I don’t ask why nor do I need to. His work landed him in prison – a place Tom calls “gladiator school.” (Exh. HH, at pp. 3-4.)

In fact, Wulff’s criminal history includes convictions for tampering with the identification

of a firearm (Pen. Code § 12090.) and being personally armed with a firearm (Pen. Code §

12022(c)). (Minutes in People v. Wulff, Super. Ct. Orange County, No 01HF0716, attached

herein as Exhibit JJ.) Interestingly, Wulff’s testimony at Marshall’s grand jury, did not

include any mention of his conviction for either possession of a firearm and tampering with

weapons.

In the article published on October 18, 2012, Wulff also described prison life and

talked about “doing work” for various white supremacist gangs and earning your stripes, or

swastikas in this case. According to the article, Wulff admitted that he “volunteered – a lot”

to do work for the Aryan Brotherhood during his various incarcerations. Whiting further

described Wulff’s criminal activity:

Tom calls accepting a kite as “doing the work.” I again, I press Tom. When a kite goes down, what does it take to ensure discipline is maintained? Stabbing, beating, murder? Tom Pauses. He glances down and considers his words very carefully. He says he was eventually cleared after being investigated for what he calls an “institutional killing.” (Exh. II, at p. 2, emphasis added.)

///

///


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The discussion of Wulff’s violent past went further:

Still, managing the kind of men who enters gangs takes, well, special measures – Tom says the kind of measures he learned in prison. “I told them you will get a ‘pull up’ if you break the rules, that the consequences are going to be violent.” He says that at times, “Things escalated, got real heavy.” How heavy? Another long pause as Tom considers disciplining gang members. “Broken bones … month in the hospital.” (Exh. II, at pp. 3-4, emphasis added.)

Wulff’s participation in the story further undermines the “coincidental contact”

argument about Wulff and Lockup. Just like with Wulff’s agreement to participate in

Lockup, it was a member of the Sheriff’s Department who almost certainly pushed Wulff

toward Whiting and the Orange County Register. One of the earlier pieces in the series

focuses on an investigator with the OCSD who investigates white supremacist groups.

(Whiting, Investigator Goes Underground in Skinhead World, Orange County Register, OC

Register, August 21, 2013.) As indicated previously, Wulff testified in People v. Marshall,

which was the product of a major white supremacist investigation.

If Wulff’s interview with Lockup faintly resembled what he shared with the Orange

County Register, or included some of the details, the government had ample reason for

concern, and plenty of motivation to request that Wulff not be included in an aired episode.

The dishonesty about his role in the home invasion robbery would have damaged his

credibility. Additionally, information about the charged and uncharged acts of Wulff, when

compared to what was presented about Wulff in Adams and Marshall, would have shown

how the government misleadingly presents its witnesses, particularly when it believes

defense counsel is in the dark. A discussion on national television appearing remotely

similar to what was included in the newspaper stories would have raised serious questions

about what the OCSD and OCDA knew and chose not to share in court proceedings to

obtain a competitive advantage.

Moreover, if Lockup was asked to pull Wulff, the next question is what was done to

convince the production company that it was necessary. Did the OCSD claim that their


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request was motivated by confidentiality and security concerns, even though these

concerns did not exist earlier? Most likely, conditions had changed, and Wulff’s

statements were viewed as more advantageous to defendants than they were to the OCSD

and prosecutors. With the tables turned, the agency probably thought it the perfect time to

invoke concerns for the confidentiality and security of an inmate—and that invocation

appears to have been honored by their teammates at Lockup.

ISSUES PRESENTED

I.

WHETHER A NEWSPERSON’S PROTECTION UNDER THE SHIELD LAW MUST YIELD TO A CRIMINAL

DEFENDANT’S FEDERAL CONSTITUTIONAL RIGHT TO A FAIR TRIAL WHEN THE MEDIA’S REFUSAL TO DISCLOSE INFORMATION WOULD INFRINGE UPON

THAT RIGHT?

II.

WHETHER A NEWSPERSON’S QUALIFIED PRIVILEGE UNDER THE FIRST AMENDMENT OF THE UNITED

STATES CONSTITUTION MUST YIELD TO A CRIMINAL DEFENDANT’S RIGHT TO A FAIR TRIAL

WHEN THE MEDIA’S REFUSAL TO DISCLOSE INFORMATION WOULD INFRINGE UPON THAT

RIGHT?

III.

WHETHER SUZANNE ALI’S DISCLOSURE OF PREVIOUSLY UNPUBLISHED MATERIAL TO THE

OCSD AND THE OCDA CONSTITUTES A WAIVER OF THE SHIELD LAW AND FIRST AMENDMENT?


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POINTS, AUTHORITIES, AND ARGUMENT

I.

A NEWSPERSON’S PROTECTION UNDER THE SHIELD LAW MUST YIELD TO A CRIMINAL DEFENDANT’S

FEDERAL CONSTITUTIONAL RIGHT TO A FAIR TRIAL WHEN THE MEDIA’S REFUSAL TO DISCLOSE

INFORMATION WOULD INFRINGE UPON THAT RIGHT.

The Shield Law must yield to a criminal defendant's federal constitutional right to a

fair trial; that is, a defendant’s federal constitutional rights to fair trial under the Due

Process Clause of the Fifth, Sixth, and Fourteenth Amendments and state constitutional

rights pursuant to article 1, section 15, because these rights trump the Shield Law. (Miller

v. Superior Court (1999) 21 Cal.4th 883, 897 (hereafter Miller); Delaney, supra, 50 Cal.3d

at pp. 805-806; Fost v. Marin County Superior Court (2000) 80 Cal.App.4th 724, 731.) A

person accused of a crime has a fundamental right under both the state and federal

Constitutions to a fair trial. (Delaney v. Superior Court (1990) 50 Cal.3d 785, 805-806; see

also Cal. Const., art. I, § 15; In re Martin (1987) 44 Cal.3d 1, 29-30.) Accordingly,

included in the right to a fair trial is a “constitutionally guaranteed access to evidence”

(California v. Trombetta (1984) 467 U.S. 479, 485; see also United States v. Nixon (1974)

418 U.S. 683, 709-711), and the right to compulsory process to obtain evidence.

(Washington v. Texas (1967) 388 U.S. 14, 17-19; Delaney, supra, 50 Cal.3d at p. 808.)

Moreover, should the compulsory process establish that a defendant’s right to counsel has

been violated by a third party media organization’s actions in conjunction with, and at the

direction of law enforcement, then any statements obtained in violation of a defendant’s

right to counsel are inadmissible at trial. (Massiah v. United States (1964) 377 U.S. 201,

206-207 (hereafter Massiah) [The Supreme Court of the United States found that the

government cannot deliberately elicit incriminating statements from the accused once the

adversarial criminal proceeding has been initiated and once the constitutional right to

assistance of counsel has attached. If the government elicits such statements in the absence


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of counsel, those statements are inadmissible at trial against that defendant.]; In re Neely

(1993) 6 Cal.4th 901, 915.)

The Newsperson's Shield Law is set forth in article I, section 2(b) of the California

Constitution and is codified in Evidence Code section 1070. Article I, section 2(b) states in

pertinent part:

A publisher, editor, reporter, or other person connected with or employed upon a newspaper, magazine, or other periodical publication...shall not be adjudged in contempt...for refusing to disclose the source of any information procured while so connected or employed for publication in a newspaper, magazine or other periodical publication, or for refusing to disclose any unpublished information obtained or prepared in gathering, receiving or processing of information for communication to the public.

Likewise, Evidence Code section 1070 states: (a) A publisher, editor, reporter, or other person connected with or employed upon a newspaper, magazine, or other periodical publication, or by a press association or wire service, or any person who has been so connected or employed, cannot be adjudged in contempt by a judicial, legislative, administrative body, or any other body having the power to issue subpoenas, for refusing to disclose, in any proceeding as defined in Section 901, the source of any information procured while so connected or employed for publication in a newspaper, magazine or other periodical publication, or for refusing to disclose any unpublished information obtained or prepared in gathering, receiving or processing of information for communication to the public. (b) Nor can a radio or television news reporter or other person connected with or employed by a radio or television station, or any person who has been so connected or employed, be so adjudged in contempt for refusing to disclose the source of any information procured while so connected or employed for news or news commentary purposes on radio or television, or for refusing to disclose any unpublished information obtained or prepared in gathering, receiving or processing of information for communication to the public. (c) As used in this section, "unpublished information" includes information not disseminated to the public by the person from whom disclosure is sought, whether or not related information has been disseminated and includes, but is not limited to, all notes, outtakes, photographs, tapes or other data of whatever sort not itself disseminated to the public through a medium of


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communication, whether or not published information based upon or related to such material has been disseminated.13 Aside from minimal differences in wording, the above-referenced constitutional

provision and statute, “protect [ ] a newsperson from being adjudged in contempt for

refusing to disclose either: (1) unpublished information, or (2) the source of information,

whether published or unpublished.” (Delaney, supra, 50 Cal.3d at p. 797.) “The shield

law provides absolute rather than qualified protection in immunizing a newsperson from

contempt for not revealing unpublished information.” (People v. Vasco (2005) 131

Cal.App.4th 137, 151 (hereafter Vasco); Miller v. Superior Court, supra, 21 Cal.4th at p.

890.) However, the Shield Law is not an absolute privilege against disclosure. (Delaney,

supra, 50 Cal.3d at p. 797, fn. 6; Sci-Sacramento, Inc. v. Superior Court (1997) 54

Cal.App.4th 654, 661 (hereafter Sci-Sacramento).) It merely protects a newsperson from

being adjudged in contempt of court for refusing to disclose either unpublished information

or the source of information, whether published or unpublished. (Delaney, supra, 50

Cal.3d at pp. 797-798.) Furthermore, the media cannot simply refuse to produce the

subpoenaed documents in court. “The better policy is to encourage parties to allow

disputed materials to be examined by the trial court in camera, because the court’s review

may resolve the matter expeditiously and short of a contempt adjudication.” (Sci-

Sacramento, supra, 54 Cal.App.4th at p. 662.)

In order to qualify for protection under the Shield Law, a newsperson must make a

prima facie showing that he or she is one of the types of persons enumerated in the law,

that the information was “‘obtained or prepared in gathering, receiving or processing of

information for communication to the public,’ and that the information has not been

‘disseminated to the public by the person from whom disclosure is sought.’ [Citation.]”

(Delaney, supra, 50 Cal.3d at p. 805, fn. 17; Vasco, supra, 131 Cal.App.4th at p. 152.)

13 For purposes of said motion, when referring to either article I, section 2(b) or Evidence Code section 1070, counsel may refer to each equally as the Shield Law.


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Here, Defendant, by and through counsel, agrees that the above-referenced third

party media organizations, by way of their Motion to Quash Defendant’s subpoenas, have

made a prima facie showing that they are one of the types of person(s) so enumerated.

Suzanne Ali is a freelance field producer, hired by said entities, and thus is also a person

covered by the Shield Law. Nevertheless, pursuant to the subpoenas, Defendant seeks

information and/or evidence that is (1) published and unpublished information; and/or (2)

the source of information, whether published or unpublished. As such, in order to

overcome said prima facie showing, the burden now shifts to Defendant to establish that

his rights to due process, a fair trial, and assistance of counsel pursuant to the Fifth, Sixth,

and Fourteenth Amendments of the United States Constitution and article I, section 15 of

the California Constitution, outweigh the third party media organization’s rights.

Even though Defendant agrees that the prima facie finding has been met in order to

bring the third party media organizations and Suzanne Ali under the umbrella of protection

afforded by the Shield Law, “the shield law ‘may be overcome only by a countervailing

federal constitutional right’ [Citation.]” (Vasco, supra, 131 Cal.App.4th at p. 151.) In

order to overcome that prima facie showing by a newsperson, a criminal defendant must

show a “reasonable possibility that the information will materially assist his [or her]

defense.” (Delaney, supra, 50 Cal.3d at p. 809.) A defendant need not establish that the

information requested, “goes to the heart of his case.” (Ibid.)

As such, in order to provide guidance to the lower courts, in Delaney, the Supreme

Court of California delineated how a defendant’s threshold requirement must be applied in

practice. Specifically, the Court stated:

First, the burden is on the criminal defendant to make the required showing. Second, the defendant’s showing need not be detailed or specific, but it must rest on more than mere speculation. Third, the defendant need not show a reasonable possibility the information will lead to his exoneration. He need show only a reasonable possibility the information will materially assist his defense. The distinction between exoneration and assisting the defense is significant. “Exoneration” means “the removal of a burden, charge, responsibility, or duty.” (Black's Law Dict. (5th ed. 1979) p. 516, col. 2.)


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Stated more simply, in criminal proceedings, “exoneration” is generally understood to mean an acquittal or dismissal of charges. Evidence, however, may be critical to a defense even if it will not lead to exoneration. For example, evidence may establish an “imperfect defense,” a lesser included offense, a lesser related offense, or a lesser degree of the same crime; impeach the credibility of a prosecution witness; or, as in capital cases, establish mitigating circumstances relevant to the penalty determination. A criminal defendant’s constitutional right to a fair trial includes these aspects of his defense. (Delaney, supra, 50 Cal.3d at p. 809, original italics, citation omitted.)14

In that regard, a defendant’s right to a fair trial and due process includes disclosure

of evidence that will, inter alia, establish a Massiah violation. As the Court in Delaney

stated, a defendant’s “showing need not be detailed or specific, but it must rest on more

than mere speculation.” (Delaney, supra, 50 Cal.3d at p. 809.) Furthermore, a criminal

defendant is not required to show that the information goes to the heart of the case.

(People v. Cooper (1991) 53 Cal.3d 771, 820; People v. Von Villas (1992) 10 Cal.App.4th

201, 234.) A defendant’s ability to obtain information to use at his trial in order to defend

against the charges levied by the state is a fundamental right and/or a right that is arguably

a cornerstone for due process. In criminal matters, this ability is often times premised upon

a defendant’s ability to rely and/or request governmental assistance in procuring likely

helpful evidence, “not just evidence that goes to the heart of the case.” (Delaney, supra, 50

Cal.3d at p. 808.) As the Court in Delaney further stated:

The need to develop all relevant facts in the adversary system is both fundamental and comprehensive. The ends of criminal justice would be defeated if judgments were to be founded on a partial or speculative presentation of the facts. The very integrity of the judicial system and public confidence in the system depend on full disclosure of all the facts, within the framework of the rules of evidence. (Ibid., citing United States v. Nixon (1974) 418 U.S. 683, 709 [41 L. Ed. 2d 1039, 1064, 94 S. Ct. 3090], italics omitted.)

14 The Court further stated that the above-referenced list of examples that might assist a defense was not exhaustive: “We need not and do not in this case attempt to enumerate all the ways in which evidence might materially assist a defense.” (Delaney, supra, 50 Cal.3d at p. 809, fn. 23.)


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With regard to the initial threshold, the Court in Delaney articulated a three prong

test that is to be applied in practice. (Delaney, supra, 50 Cal.3d at p. 809.) First, the

burden is on the criminal defendant to establish the need for the requested material. (Ibid.;

Hallissy v. Superior Court (1988) 200 Cal.App.3d 1038, 1045.) Second, a defendant’s

argument in support of the need for said information “need not be detailed, but it must rest

on more than mere speculation.” (Delaney, supra, 50 Cal.3d at p. 809.) Lastly, a

defendant “need not show a reasonable probability the information will lead to his

exoneration. He need show only a reasonable possibility the information will materially

assist his defense.” (Ibid.)

As is the situation in the present matter, Media Third Parties argue that the

information requested will not “materially assist” Defendant and that nothing Defendant

stated in the published portion of the episode, “The Unholy Trinity” was “incriminating.”

(See Opposition, at pp. 13-14.) Said arguments understandably miss the point of

Defendant’s contentions that even though the material in Media Third Party’s possession

does not exonerate Defendant, said information can materially assist Defendant’s case by

refuting the notion that Media Third Parties’ interaction with Defendant was mere

happenstance and/or completely coincidental. As discussed in detail previously and

supported by Defendant’s attachments, the OCSD did not merely facilitate the meeting

between Defendant and Lockup, but rather it encouraged and orchestrated the encounter in

order to obtain statements from not only Defendant, but multiple inmates who were

incarcerated in the Orange County jail. The direction and facilitation of an interview with

Defendant was done in violation of the Fifth and Sixth Amendments to the Constitution of

the United States.

Again, Media Third Parties’ emphasis that the statements of Wozniak are not

incriminating is understandable because of what would naturally be a somewhat limited

familiarity with the unique features of these proceedings and the litigation regarding

Special Handling’s efforts within the jail. The prosecutor has indicated that he may seek

introduction of the Lockup footage during the penalty phase of the proceedings. This is


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based upon his analysis that those statements could be potentially helpful in rebutting

defense evidence. In other words, the prosecution recognizes the potential power of the

Lockup programming to help sway a jury—because of Defendant’s statements and the

manner in which those statements were presented—to vote for Wozniak’s death by lethal

injection. Again, it is certainly reasonable that Media Third Parties would not have fully

recognized the significance of Defendant’s communications on Lockup. A declaration by

attorney Scott Sanders will include further analysis of this issue. It will be filed under seal

and provided at the time of the hearing.

The “distinction between exoneration and assisting the defense is significant.”

(Delaney, supra, 50 Cal.3d at p. 809.) Defendant seeks evidence that will support

exclusion of statements that if introduced would support a verdict of death in this case.

Separately, proof that the OCSD directed, facilitated and then covered up its efforts to

illegally obtain statements from Wozniak, which they knew may not only be introduced in

the trial but would be published to the community at large, supports an argument that the

government engaged in outrageous governmental conduct. Their efforts and the

subsequent cover up of those efforts are also critical in establishing that the OCSD and its

Special Handing Unit cannot be reasonably relied upon to turn over evidence favorable to

the Defendant, and thus the imposition of the death penalty would be arbitrary and

capricious.

As discussed in detail above, the prosecution team, including members of the

Special Handling Unit, as well as Ali, essentially contend that this was a matter of luck that

Suzanne Ali and Lockup happened upon Defendant. It should be emphasized, though, that

few have claimed “coincidence” as often as members the Special Handling Unit. And,

unfortunately, it appears that Ali has been drawn into this web.

Media Third Parties were certainly unaware, before their response, that Grover,

recently made the long overdue acknowledgement that Lockup indeed sought high profile

defendants (though then conveniently claimed he did not know whether he or Garcia

responded to these inquiries and what they said.) As discussed earlier, in his impossible to


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make this in analysis without considering that Perez also coincidentally found his way to

Wozniak (after Special Handling adjusted his classification level) and then began a prolific

informant career in which he worked non-stop for the government immediately after he

happened to obtain statements from a high profile capital defendant in Wozniak. Grover,

and possibly Garcia, identified two informants, as well as two additional inmates, to appear

in the program before Ali even had a chance to start supposedly begin making her

extraordinarily skilled identifications. Ultimately, there is no reasonable counter-argument:

Special Handling suggested that Ali contact Wozniak about participating in the program.

Second, Defendant’s request for the information is sufficiently detailed for the Court

to understand the significance of the material he is requesting. As such, even after

attempting to seek the material in question from the OCSD by way of SDT, a closer study

of the records obtained compellingly indicates that the OCSD has withheld additional e-

mails in an attempt to portray their interactions with Lockup as simply mere facilitators of

the interviews that were conducted. For example, as discussed above, after Ali contacted

Grover in June of 2010, Grover initiated a trail of e-mails after seeking “boundaries Special

Handling needs to follow…” (PD Exhibit I, PD 417.) However, there is no responsive e-

mail to Grover, nor a responsive e-mail from Grover to Ali.

While Media Third Parties would reasonably have been unaware of Defendant’s

attempts to obtain said information from an alternative source (e.g., OCSD), courts have

indicated that whether another source was sought or information was obtained from

another source, does not necessarily end the analysis. The Court in Delaney concluded that

“a universal and inflexible alternative-source requirement is inappropriate in a

criminal proceeding.” (Delaney, supra, 50 Cal.3d at p. 812, emphasis added.) The

misconduct and concealment by the OCSD demonstrates that their claims of discovery

compliance in the instant matter are to be distrusted. The alternative source (the OCSD)


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has demonstrated its indifference to upholding the principles of Brady.15 The 25 year

concealment of TRED files, the concealment of the existence of the jailhouse informant

program, and other deception detailed above, demonstrated compellingly that the

alternative source cannot be trusted to turn over all relevant materials—and, in fact, can be

counted on to withhold materials within their files helpful to Wozniak. Said findings

further bolster Defendant’s contentions that Defendant has satisfied the minimum threshold

analysis that the information in the possession of Media Third Parties will materially assist

his defense.

Additionally, while OCSD’s direction to Lockup to engage Wozniak in an

interview in violation of the Fifth and Sixth Amendments does not exonerate Defendant, it

does establish a Massiah violation. As such, a finding that a violation occurred would

prevent the People from using any and all statements made by Defendant to Lockup. The

seriousness of the misconduct, though, extends far beyond the constitutional violation.

Proof that the OCSD violated the Sixth Amendment rights of Wozniak and others, via the

direction to the Lockup staff, and then hid evidence that would have shown their role in

obtaining statements, demonstrates the shocking unwillingness to hide critical evidence,

further establishing that the imposition of the death penalty in this case would be arbitrary

and capricious. The decision to engage in such conduct—both instigating the Sixth

Amendment Violation and then covering it up—while knowing that misconduct would

also result in the dissemination of illegally obtained statements to the public was

outrageous and support an order prohibiting imposition of the death penalty. In view of the

illegality of the conduct by the government that is at issue, Defendant has clearly

established sufficient grounds supporting his contentions that he has met the minimal

15 Brady v. Maryland (1963) 373 U.S. 83 [83 S.Ct. 1194, 10 L.Ed.2d 215], (hereafter Brady).


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standards of the threshold test and as such, this Court must proceed with the four-prong

balancing test as articulated in Delaney.

Once the minimal threshold showing has been satisfied, the court then proceeds to

the second stage of the inquiry and balances “the defendant’s and newsperson’s respective,

perhaps conflicting, interests.” (Delaney, supra, 50 Cal.3d at p. 809.) When conducting

that balancing test, the court must consider the following factors: (a) whether the

unpublished information is confidential or sensitive so that disclosure might threaten the

newsperson’s access to future sources; (b) the interests protected by the shield law and

whether other circumstances demonstrate no adverse consequences to disclosure, as when

the defendant is the source of information; (c) the importance of the information to the

defendant; and (d) whether there is an alternative source for the unpublished information.

(Id. at pp. 810-811.) Furthermore, the Court in Delaney noted the relative importance of

the preceding factors will vary from case to case and declined to hold, in the abstract, that

any factor or combination of factors would be determinative in all cases. (Id. at p. 813.)

A. Whether the Unpublished Information Is Confidential or Sensitive So That Disclosure Might Threaten the Newsperson's Access to Future Sources?

As to the first step in the balancing test, the Court in Delaney stated that when the

information sought is not confidential, “the court should consider whether it is nevertheless

sensitive, that is, whether its disclosure would somehow unduly restrict the newsperson’s

access to future sources and information.” (Delaney, supra, 50 Cal.3d at p. 810.)

Commonsense dictates that information that is non-confidential or non-sensitive, is

essentially less worthy of the protections provided by the Shield Law, compared to

information and/or evidence that is sensitive or confidential in nature. (Ibid.) Furthermore,

the Shield Law's purpose is to “protect a newsperson's ability to gather and report the

news.” (Vasco, supra, 131 Cal.App.4th at p. 152.)

The items sought via both subpoenas are neither confidential nor sensitive such that

their disclosure would restrict the ability of Ali and Lockup to access future sources of

information. Lockup is a program that, by choice, places itself in an environmental where


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criminal rights are persistently implicated and evidence is being gathered that is likely to be

helpful in prosecuting those who appear on the show. Those who work with Lockup,

including Ali as well as the law enforcement agencies and their employees, expect that their

programming may be shared whether aired or not. In fact, proof of this point is evidenced

by a string of e-mails found beginning at page PD 353 of Exhibit I. In those e-mails,

representatives of the OCSD requested from Lockup the complete footage of the interviews

with Bowles. The request is logical and understandable, regardless of whether it was

ultimately granted. Similarly, law enforcement agencies would reasonably expect that

unaired footage would be relevant to the cases of criminal defendants, and the release of

that footage would be expected, as well. Its release will not have a chilling effect upon the

relationship between the Lockup, its employees and law enforcement.

Similarly, law enforcement would reasonably expect that communications that

implicate the rights of criminal defendants would be relevant and expect that incoming and

outgoing communications may be released. In this case, for example, more than 700 pages

of communications were provided by the OCSD after a subpoena was issued. Again, the

release of additional communication pertaining to related subject matters would be

reasonably anticipated and its release by Lockup would not impact their access to the

identified sources.

B. Whether the Interests Protected by the Shield Law and Whether Other Circumstances Demonstrate No Adverse Consequences to Disclosure?

Whether a defendant, who is seeking to compel the disclosure of information from

the media, is also the source of the information is a factor that the court must weigh in its

balancing test. (Delaney, supra, 50 Cal.3d at p. 810.) In Vasco, the court further stated

that:

Where the defendant is both the source of the reporter’s information and the person requesting the disclosure, there is no risk the reporter’s source (the defendant) will complain (his or) her confidence has been breached. [Citation.] Nor is the separate policy of safeguarding press autonomy in any


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way compromised. [Citation.] And, where the defendant is the reporter's source of information, there appears no reason to assume disclosure would hinder the reporter’s ability to gather news in the future. (Vasco, supra, 131 Cal.App.4th at p. 152.) Furthermore, even if the source of the information is confidential and/or the nature

of the information sensitive, the policy of the Shield Law may in fact have to give way to

protect a defendant’s constitutional rights to a fair trial when the information to be

disclosed establishes a systematic and well-orchestrated series of events made to look like

coincidental encounters between the media and inmates. The policy of protecting the free

flow of information by way of the Shield Law is not promoted when the Shield Law is

invoked to hide law enforcement’s complete and utter disregard for inmates’ constitutional

rights, including the right to assistance of counsel after charges have been formally leveled.

Evidence Code section 1070 does not shield newspersons from testifying about

criminal activity in which they have participated or which they have observed, and

attempts to the invoke the privilege have been denied by the Supreme Court of the United

States and prohibited by the Legislature in analogous statutory privileged relationships.

(See Rosato v. Superior Court (1975) 51 Cal.App.3d 190 (hereafter Rosato)) Although

Rosato was pre-constitutional ratification of the Shield Law in article I, section 2(b), it did

involve the virtually analogous statutory precursor in Evidence Code section 1070. The

court in Rosato looked to the Supreme Court of the United States’ opinion in Brazenburg v.

Hayes (1972) 408 U.S. 665, [92 S.Ct. 2646, 33 L.Ed.2d 626], whereby the Supreme Court

stated:

It would be frivolous to assert—and no one does in these cases—that the First Amendment, in the interest of securing news or otherwise, confers a license on either the reporter or his news sources to violate valid criminal laws. Although stealing documents or private wiretapping could provide newsworthy information, neither reporter, nor source is immune from conviction for such conduct, whatever the impact on the flow of news. Neither is immune [sic], on First Amendment grounds, from testifying against the other, before the grand jury or at a criminal trial. The Amendment does not reach so far as to override the interest of the public in


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ensuring that neither reporter nor source is invading the rights of other citizens through reprehensible conduct forbidden to all other persons. . . . Thus, we cannot seriously entertain the notion that the First Amendment protects a newsman’s agreement to conceal the criminal conduct of his source, or evidence thereof, on the theory that it is better to write about crime than to do something about it. Insofar as any reporter in these cases undertook not to reveal or testify about the crime he witnessed, his claim of privilege under the First Amendment presents no substantial question. The crimes of news sources are no less reprehensible and threatening to the public interest when witnessed by a reporter than when they are not. (Brazenburg v. Hayes, supra 408 U.S. 665, 691-693.)

Because the language of Evidence Code section 1070 and the Shield Law as

articulated in article I, section 2(b) of the California Constitution are virtually identical, it is

unreasonable that the Constitutional provision somehow protects 1) an agreement between

the newsperson and law enforcement to operate in concert to obtain statements in violation

of the constitution, which may impact whether a capital defendant is executed or lives; 2)

to allow those statement to be aired despite the recognized illegality of the conduct

demonstrated by related deception; and 3) to attempt to forever conceal the deliberate

wrongdoing. Essentially the public policy behind the Shield Law cannot support a joint

effort to violate Defendant’s constitutional rights, nor the cover-up of that conduct.

C. What Is the Importance of the Information to Defendant?

In Delaney, the Court emphasized that “[a] defendant in a given case may be able

not only to meet but to exceed the threshold ‘reasonable possibility’ requirement.”

(Delaney, supra, 50 Cal.3d at p. 811.) For example, when a defendant is able to show that

the evidence could be “dispositive in his favor,” e.g., the evidence goes to the “‘the heart of

defendant's case.’” (Ibid.) The evidence sought in the subpoenas at issue could support the

exclusion of statements obtained in violation of the Sixth Amendment, and expose the

OCSD’s commitment to hiding favorable evidence, thereby supporting a ruling that

prohibits the imposition of the death penalty.


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The balance will weigh more heavily in favor of disclosure than if [the defendant]

could show only a reasonable possibility the evidence would assist his defense.” (Ibid.)

Here, the importance of the information requested by Defendant will expose the well-

orchestrated effort of the OCSD to use Lockup to unlawfully obtain statements from not

only Defendant, but also several inmates while housed at the Orange County jails. The

OCSD is inextricably intertwined with Lockup’s contact with Defendant. The Sixth

Amendment of the United States Constitution guarantees a criminal defendant the right to

an attorney. (See Massiah v. United States (1964) 377 U.S. 201, 206, [12 L.Ed.2d 246, 84

S.Ct. 1109]; see also Kuhlmann v. Wilson (1986) 477 U.S. 436, 460 [91 L.Ed.2d 364, 106

S.Ct 2316].) Furthermore, the mandates of Massiah are even “more seriously imposed

upon” when the defendant, who is in custody, does not even know that the questioner is a

government agent. (Massiah, supra, 377 U.S. at p. 206; see, e.g., Franklin v. Duncan

(N.D. Cal. 1995) 884 F.Supp. 1435, 1450.)

“An accused is protected from questioning by a government agent who, when the

government intentionally creates a situation likely to induce the accused to make

incriminating statements without the assistance of counsel, attempts to so elicit such

statements.” (Franklin v. Duncan, supra, 884 F.Supp. at p. 1451; see Massiah, supra, 377

U.S. 201 [12 L.Ed.2d 246, 84 S.Ct 1199]; United States v. Henry (1980) 477 U.S. 264,

270-274 [65 L.Ed.2d 115, 100 S.Ct. 2183].) The key to the equation lies in the quantum of

action and/or direction that the government imports into the relationship with the

questioner/agent. As articulated below, this quantum of direction need not be great.

Direction by the government to any individual to elicit incriminating statements from a

defendant violates the Sixth Amendment. (Franklin v. Duncan, supra, 884 F.Supp. at p.

1451.) Nevertheless, if the government obtains the incriminating statements “by luck or

happenstance,” (Maine v. Moulton (1985) 474 U.S. 159, 176 [88 L.Ed.2d. 481, 106 S.Ct.

477]) then the Sixth Amendment is not violated.

The agent and/or questioner does not even have to be the traditional inmate-

informant. In Franklin v. Duncan, the government used a private citizen, the daughter of


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the defendant, in order to question the defendant without the assistance of counsel.

(Franklin v. Duncan, supra, 884 F.Supp. at p. 1451.) At trial, the daughter testified that

during a telephone conversation with her father, she accused him of murdering the victim,

Susan Nason, who was a classmate of the daughter. (Id. at pp. 1438, 1445.) When the

daughter told the defendant that he should tell the truth and confess to Nason’s murder, the

defendant’s “tacit reply was to point to a sign in the visiting room which indicated

‘Conversations May Be Monitored.’” (Id. at p. 1445.) The government, over objection,

referenced the defendant’s silence four times during its closing remarks and they further

“emphasized that [the defendant’s] failure to deny [the daughter’s] accusation constituted

an admission of guilt ‘worth its weight in gold when you put into the equation of proof

beyond a reasonable doubt.’” (Ibid.) Furthermore, the prosecution argued that any

innocent man would have completely denied his guilt, but that defendant didn’t have the

“chutzpah” to deny it. (Ibid.)

After the defendant was convicted, his daughter published a book called Sins of the

Father. (Franklin v. Duncan, supra, 884 F.Supp. at p. 1444.) In the book, she described

how she met with the prosecutor and how she informed him of her intention to talk to her

father in order to persuade him to confess. (Ibid.) According to the daughter, the

prosecutor told her that he could not ask her to obtain a confession from her father, but that

he did not think it was such a bad idea. (Id. at p. 1445.) The prosecutor said he did not

recall telling the daughter whether it would be a good idea to try and obtain a confession,

but he did recall providing her with the name and telephone number of the jail official who

could arrange the visit. (Id. at pp. 1445, 1451.) The prosecutor also met with the daughter

just prior to her jail visit. (Id. at p. 1451.) The daughter made arrangements to visit her

father and initially she was told to come back during regular visiting hours, but when she

provided the duty officer her name, she was immediately put in contact with Sergeant

Cuneo. (Ibid.) Sergeant Cuneo accommodated the daughter and allowed her to have

contact with her father at a time not available to regular visitors. (Ibid.) The state appellate


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court found that ‘“[the daughter] had received at least the blessing of the district attorney’s

office before speaking with [her father].”’ (Ibid.)

The Court in Franklin v. Duncan was aware that the mere facilitation by the

government in order for the daughter to have access to her father was not enough to

establish an agency relationship with the daughter. (Franklin v. Duncan, supra, 884

F.Supp. at pp. 1451-1452.) Nevertheless, the Court in Franklin v. Duncan stated the

following:

Although the government did not order Franklin-Lipsker to meet with her father, the government approved of her decision, thus lending her moral support. The government also lent her practical support by arranging a special visit to her father during non-regular visiting hours. It is improper for the government to so involve itself in the questioning of a person in custody by a private citizen. Cf. United States v. Surridge, 687 F.2d 250 (8th Cir.), cert. denied, 459 U.S. 1044, 74 L. Ed. 2d 614, 103 S. Ct. 465 (1982) (“As long as police do nothing to direct or control or involve themselves in the questioning of a person in custody by a private citizen, such questioning does not violate the fifth or sixth amendments.”) (emphasis added). The government should not reap the benefits of such conduct. [United States v.] Henry [(1980) 447 U.S. 264, 274] directs the federal court to consider whether the government “intentionally created a situation likely to induce the accused to make incriminating statements without the assistance of counsel.” [Citation.] The government and Franklin-Lipsker together “created a situation likely to induce” petitioner to make incriminating statements without the assistance of counsel. At the very least, the state knowingly exploited an opportunity to question petitioner outside the presence of counsel. Maine v. Moulton, 474 U.S. 159, 176, 106 S.Ct. 477, 487, 88 L. Ed. 2d 481 (1985) (“Knowing exploitation by the State of an opportunity to confront the accused without counsel being present is as much a breach of the State's obligation not to circumvent the right to the assistance of counsel as is the intentional creation of such an opportunity.”). Accordingly, the sixth amendment was violated. (Franklin v. Duncan, supra, 884 F.Supp. at pp. 1451-1452, original italics.) In the present matter, the OCSD knowingly exploited an opportunity to have an

agent question Defendant, and other inmates, outside the presence of their attorneys. This

knowing exploitation by the OCSD of an opportunity to interview Defendant is akin to the

actions of the government in Franklin v. Duncan. Engaging in this conduct, and knowing


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that the it would result in the publication of the illegally obtained statements to potential

jurors and a national viewing audience, is the very definition of outrageous governmental

conduct.

D. Whether There Is an Alternative Source for the Unpublished Information?

Throughout Media Third Parties’ response and objections to Defendant’s

subpoenas, they routinely state that the information Defendant is seeking is available from

other sources. “NBC News (and 44 Blue) objects to this Request to the extent that it seeks

the production of materials that are available to Defendant from other sources.” (See

Media Third Parties’ Response and Objections to subpoenas.) In People v. Mitchell (1984)

37 Cal.3d 268, 282 (hereafter Mitchell), the Supreme Court of California stated that the

discovery of a reporter’s confidential information should be denied unless the party seeking

it “has exhausted all alternative sources of obtaining the needed information.” This

requirement and/or obligation of exhausting all alternative sources of obtaining the

requested information has also been imposed on criminal defendants. (Hallissy v. Superior

Court (1988) 200 Cal.App.3d 1038, 1045-1046; Hammarley v. Superior Court (1979) 89

Cal.App.3d 388.) Nevertheless, the Court in Delaney stated that “[i]n light of a

defendant’s constitutional right to a fair trial, however, Mitchell, a civil case, does not

mandate a rigid alternative-source requirement in criminal proceedings.” (Delaney, supra,

50 Cal.3d at p. 811.)

With regard to the “alternative source requirement,” the reason it is a factor “is to

protect against the unnecessary disclosure of a newsperson's confidential or sensitive

information.” (Delaney, supra, 50 Cal.3d at pp. 811-812.) Furthermore, when the

information is non-confidential or non-sensitive, the “alternative source rule” is not meant

to be insurmountable hurdle, thereby preventing the eventual discovery for no apparent

reason. (Id. at p. 812) On the contrary, the rule is simply another balancing factor to assist

the court in determining when to impose said factor when the information is in fact

confidential and/or sensitive. (Ibid.)


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Nevertheless, the practical difference between the hard and fast rule as outlined in

Mitchell, and noted in Delaney, is that Mitchell was a civil case, and Delaney was a

criminal case. The court in Delany stated:

Finally, we note a significant practical difference between this case and Mitchell, supra, 37 Cal.3d 268. That case arose out of a pretrial discovery order in a civil case. In light of the wide range of procedures available for pretrial discovery in civil litigation, it is not unreasonable to require a party seeking information from a newsperson to look elsewhere first. There are no similar procedures available to a criminal defendant. For example, he cannot compel a witness’s attendance at a deposition and, if unsuccessful in obtaining information, subpoena a different witness. Moreover, the economic reality of the criminal justice system is such that a criminal defendant will generally have less opportunity than a civil litigant to obtain information before trial. [¶] For all the foregoing reasons, we conclude that a universal and inflexible alternative-source requirement is inappropriate in a criminal proceeding. In considering whether the requirement is appropriate in a given case, the trial court should consider the type of information being sought (e.g., names of potential witnesses, documents, a reporter's eyewitness observations), the quality of the alternative source, and the practicality of obtaining the information from the alternative source. The trial court must also consider the other balancing factors set forth above: whether the information is confidential or sensitive, the interests sought to be protected by the shield law, and the importance of the information to the criminal defendant. In short, whether an alternative-source requirement applies will depend on the facts of each case. (Delaney, supra, 50 Cal.3d at pp. 812-813, italics added.)

Here, Media Third Parties are admittedly unaware of Defendant’s attempts to

procure the information requested in the SDTs. This is understandable since counsel for

Defendant has not divulged what attorney-work product and/or efforts have been made in

the present case. Moreover, Assistant Deputy Public Defender Tracy Lesage (“Lesage”)

denies that she ever told Kelli Sager (“Sager”) in a phone conversation that Defendant has

made “no” efforts to seek the information requested in the subpoenas from alternative

sources. Furthermore, Attorney Lesage did not say that Defendant was not obliged to seek

the information from alternative sources. Attorney Lesage recalls asking Sager what

alternative sources were out there where she could obtain the information, and Sager’s


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response was the Defendant. Attorney Lesage specifically recalls Sager stating, “Did you

ask your client?” In response, Attorney Lesage informed Sager that attorney-client

communications were privileged and she would not divulge whether she had discussed said

matter with Defendant. (Declaration of attorney Tracy Lesage, attached herein as Exhibit

LL.)

Of course, with regard to the present subpoenas, Defendant is not an alternative

source to what initially precipitated the contact with him, to the communications between

the OCSD and Lockup, nor to the footage pertaining to Wulff. He cannot lend insights or

share evidence pertaining to the plan by Special Handling Deputies to obtain information in

violation of the Sixth Amendment, and then conceal their efforts. The one, obvious

alternative source of the information requested is the OCSD. An SDT was served upon the

OCSD and over 700 pages of discovery have been provided to Defendant. However, as

has been discussed at length, communications pertaining to the following are

conspicuously absent: 1) the direction given by OCSD superiors to Grover and/or other

Special Handling deputies regarding the “boundaries” for Special Handling after he

requested direction via e-mail; 2) Grover’s communications with Ali before and after she

reached out to him in e-mail that identified targets for participation prior the program even

being approved by the OCSD; and 3) communications related to the request and decision to

remove Wulff’s statements from aired programming.

Moreover, the absence of the these communications from the OCSD materials is not

the only reason that the agency cannot be trusted to provide such evidence that would be

helpful to Wozniak and other criminal defendants. The deception and concealment

discussed above, including the 25 years of TRED concealment, the perjury of Special

Handling deputies in recent hearings, and the lies about the existence of a jailhouse

informant program, show that there is no reasonable basis for believing that the OCSD is

an “alternative source” in anything other than name.

Significantly, an in camera review of the records would allow an expeditious and

judicially approved vehicle, whereby Media Third Parties’ rights can be protected. As the


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court in Delaney stated, “When a criminal defendant, however, seeks confidential or

sensitive information, the practical need for an in camera hearing is obvious.” (Delaney,

supra, 50 Cal.3d at p. 814.) The court further stated that:

The shield law would be illusory if a reporter had to publicly disclose confidential or sensitive information in order for a court to determine whether it should remain confidential or sensitive. We emphasize, however, that a trial court need not waste its valuable resources for an in camera hearing based on a specious claim of confidentiality or sensitivity. The court has discretion in the first instance to determine whether a newsperson's claim of confidentiality or sensitivity is colorable. If the court determines the claim is colorable, it must then receive the newsperson's testimony in camera. (Delaney, supra, 50 Cal.3d at p. 814, fn. omitted.)

Hypothetically, if the media were to observe a crime, it cannot claim that its

observations are confidential and/or sensitive. (Ibid.) The purpose of an in camera hearing

is to protect against unnecessary disclosure of confidential or sensitive information. Even if

one or more the items sought are deemed confidential or sensitive, that fact alone should

not prevent the Court from conducting an in camera hearing. In order to protect Media

Third Parties’ rights, the Court is in the best position to do a compare-and-contrast between

what has already been provided by the OCSD to Defendant, versus what is in the

possession of Media Third Parties.

II.

A NEWSPERSON’S PROTECTION UNDER THE FIRST AMENDMENT OF THE UNITED STATES

CONSTITUTION MUST YIELD TO A CRIMINAL DEFENDANT’S RIGHT TO A FAIR TRIAL WHEN THE

MEDIA’S REFUSAL TO DISCLOSE INFORMATION WOULD INFRINGE UPON THAT RIGHT?

In 1972, the Supreme Court of the United States held that the First Amendment of

the United States Constitution did not provide newspersons with even a qualified privilege

against appearing before a grand jury and being compelled to disclose the identity of news


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sources or information received from those sources. (Braznburg v. Hayes, supra, 408 U.S.

665 [92 S.Ct. 2646, 33 L.Ed.2d 626].) Nevertheless, the Supreme Court made it

abundantly clear that the state legislatures were “free, within the First Amendment limits,

to fashion their own standards.” (Id. at p. 706; [92 S.Ct at p. 2669].) In response to the

Supreme Court’s holding in Branzburg v. Hayes, California amended Evidence Code

section 1070 to its present form to protect the media against compelled disclosure of its

sources and unpublished information. (Delaney, supra, 50 Cal.3d at p. 795.) Furthermore,

in 1980, California voters approved an amendment to the California Constitution by way of

Proposition 5 and the language of Proposition 5 was virtually identical to Evidence Code

section 1070. (Ibid.) As will be discussed infra, the qualified protections afforded by the

First Amendment are arguably less protective compared to the California Constitution and

said federal protection still must give way to a Defendant’s competing right to a fair trial

pursuant to the Sixth Amendment.

In addition to the protections afforded by the California Constitution, California

Courts have recognized a qualified protection/privilege for the media that emanates from

the First Amendment. (Mitchell v. Superior Court (1984) 37 Cal.3d 268, 276 [noting that

the courts have concluded that a reporter’s privilege in civil cases must be decided on a

case-by-case basis, with the trial court examining and balancing the asserted interests in

light of the facts of the case before it. Furthermore, “there is neither an absolute duty to

disclose nor an absolute privilege to withhold, but instead a qualified privilege against

compelled disclosure which depends on the facts of each particular case.”].) Additionally,

the courts are aware of the dangers posed by compelling the media to disclose materials

and that the threat of judicial intrusion into the newsgathering process is real—as such,

“[t]he test [the courts] adopt must therefore ensure that compelled disclosure is the

exception, not the rule.” (Shoen v. Shoen (9th Cir. 1995) 48 F.3d 412, 416.) The federal

test is as follows: a civil litigant is entitled to requested discovery notwithstanding a valid

assertion of the journalist's privilege by a nonparty only upon a showing that the requested

material is: “(1) unavailable despite exhaustion of all reasonable alternative sources; (2)


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noncumulative; and (3) clearly relevant to an important issue in the case.” (Ibid.)

Furthermore, “there must be a showing of actual relevance; a showing of potential

relevance will not suffice.” (Ibid.)

A. Defendant Has Exhausted All Alternative Sources in Seeking the Information That Is in the Possession of Media Third Parties

As articulated above, Defendant has exhausted all alternative sources in seeking the

information that is in the possession of Media Third Parties. Had Media Third Parties

known that Defendant had already subpoenaed and received documents from the OCSD,

they likely would not have argued that “Wozniak has not even attempted to seek the

information from alternative sources, even obvious ones like the Orange County Sheriff’s

Department and the District Attorney’s Office.” (Opposition, at p. 17.) As such, based

upon the foregoing, Defendant has complied with the first prong of the federal test.

Likewise, for reasons previously discussed, the fact that Defendant is in receipt of a

quantity of records from the OCSD does not foreclose Defendant’s rights to have the court

conduct an in camera inspection of Lockup’s information/documents, especially since the

OCSD has been shown to withhold relevant material of the nature in question.

There is no alternative source for the recorded footage pertaining to Wulff.

B. Defendant Has Established That the Information Is Noncumulative.

In the present matter, Media Third Parties has satisfied this element of the federal

test for Defendant. Ali’s statements to Garcia provided a unique and troubling insight into

how Lockup allegedly came into contact with Defendant. This contact, which on its face

appeared to be rooted in happenstance, was nothing of the sort. Said statements, as well as

those contained in her statements to a prosecutor and in her declaration, were unpublished

and presumably protected material. Nevertheless, Ali caused this information to be

published, and thus, not protected by either the federal or state tests. As discussed

previously, there are significant differences between Garcia’s reports and the follow up

interviews conducted by the OCDA with Garcia. Thus, the information sought related to

Ali is not cumulative. The information pertaining to Wulff is also noncumulative.


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C. The Information Defendant Seeks Is Clearly Relevant to an Important Issue in the Case.

The Defendant has identified throughout this motion the relevance of the requested

items to the admissibility of statements in Defendant’s capital trial, and to establishing the

willingness of the OCSD to hide favorable evidence that could be the difference between a

life and death verdict. In balancing the interests of Media Third Parties’ qualified privilege

against Defendant’s right to a fair trial, the disclosure of the requested items is clearly

mandated.

III.

SUZANNE ALI’S DISCLOSURE OF PREVIOUSLY UNPUBLISHED MATERIAL TO THE OCSD AND THE

OCDA CONSTITUTES A WAIVER OF THE SHIELD LAW AND QUALIFIED FIRST AMENDMENT

PRIVILEGE.

On August 27, 2014, and in the wake of the Dekraai rulings, Tunstall was

interviewed by members of the OCDA with regard to how Wozniak came into contact with

Media Third Parties. (Exh. J.) On the same date, at approximately 1600 hours, Tunstall

contacted Garcia and asked him if he (Garcia) was present with Media Third Parties when

they made contact with Wozniak in the jail. Garcia said he had no memory as to whether

he was present when Media Third Parties contacted Wozniak, but that he had Ali’s cell

phone number, and that he would call her. (Exh. J.)

On the same date, at approximately 1615 hours, Garcia called Ali and asked her if

she remembered if he (Garcia) was present on the date Wozniak was contacted by Media

Third Parties. According to Garcia, Ali stated she remembered Garcia was not present on

the date Ali happened upon Wozniak, but that she was unable remember everything.

According to Garcia’s notes, “Suzanne told me she had kept notes of all her interviews and

that she would get them and call me right back.” (Exh. J.) At approximately 1630 hours,

Ali called Garcia back after reviewing her notes, and informed him that she had noticed

that Wozniak’s jumpsuit was too small and Wozniak’s facial expressions led her to seek


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him out for an interview—and that the OCSD had not directed her to make contact with

Wozniak. Garcia’s report indicates that Ali stated that Wozniak gave her a “big fake

actor’s type grin.” Furthermore, Ali informed Garcia that OCSD Deputies Grover and

Curtis handled Wozniak’s movement that day. (Exh. J.)

As discussed previously, Ali’s declaration omitted any reference to Wozniak’s “big

fake actor’s type grin;” but rather, just that Wozniak smiled at her. Ali’s Declaration

further stated that after her conversations with Garcia she “subsequently received a call

from a lawyer in the district attorney’s office” and that she does “not recall the name of the

lawyer.” Ali further stated that, “[t]he lawyer asked me to repeat what I had told Mr.

Garcia, and I did so.” (Ali’s Declaration at p. 2.)

In her Declaration, Ali stated that neither Garcia nor the unidentified attorney with

the OCDA’s office asked her if she wanted to talk with a lawyer or advised her of her

Shield Law and qualified First Amendment privilege. (Ali’s Declaration, at p. 2.)

Likewise, Ali further stated that neither Garcia nor the unidentified attorney with the

OCDA’s office asked her if she would be willing to testify in Defendant’s matter and she

affirmed that she is not willing to do so now. (Ali’s Declaration, at p. 2.) Ali said she had

no intention of waiving her Shield Law rights and/or qualified First Amendment privilege.

A. Can the Shield Law Be Waived As to Unpublished Material?

The Court in Delaney expressly stated that the California Shield Law “does no more

than prohibit a newsperson from being held in contempt. Moreover, the Legislature has

stressed in reference to identical language in section 1070 that, ‘[i]t should be noted that

Section 1070, like the existing law, provides an immunity from being adjudged in

contempt; it does not create a privilege.’ [Citation omitted.].” (Delaney, supra, 50 Cal.3d at

p. 797, fn. 6.) It does not state that the Shield Law cannot be waived.

Additionally, the Court in footnote 6 further stated that:

The immunity-privilege distinction has been observed in most cases. For example, in KSDO v. Superior Court (1982) 136 Cal.App.3d 375 [186 Cal.Rptr. 211], the court stated, “The


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California shield law . . . is unique in that it affords only limited protection. It does not create a privilege for newspeople, rather it provides an immunity from being adjudged in contempt. This rather basic distinction has been misstated and apparently misunderstood by members of the news media and our courts as well.” (Id. at pp. 379-380, italics added.) We agree with the KSDO court and the others who have correctly noted that the shield law provides only an immunity from contempt, not a privilege. (Hallissy v. Superior Court (1988) 200 Cal.App.3d 1038, 1045 [248 Cal.Rptr. 635]; Playboy Enterprises, Inc. v. Superior Court (1984) 154 Cal. App.3d 14, 26 [201 Cal.Rptr. 207].) We disapprove of occasional suggestions, perhaps inadvertent, to the contrary. (Hammarley v. Superior Court (1979) 89 Cal.App.3d 388, 396-398 [153 Cal.Rptr. 608]; CBS, Inc. v. Superior Court (1978) 85 Cal.App.3d 241, 250 [149 Cal.Rptr. 421].) (Delaney, supra, 50 Cal.3d at p. 797, fn. 6.)

Noting that the Shield Law is not a privilege, but rather, a protection against

contempt for failure to disclose unpublished material; can the protection against disclosure

of unpublished material be waived? Here, Ali, by way of her Declaration, has for the first

time, provided additional information to the public that was once unpublished and

protected. By adding said information in her Declaration, which was not filed under seal,

she has published new information. Thus, she has effectively waived any Shield Law

protection as to any previously unpublished information contained in her Declaration.

Nevertheless, there are omissions in Ali’s Declaration compared to Garcia’s report(s)

documenting Ali’s statements to him.

The dissemination of material that is related to unpublished material does not waive

the protection of the unpublished material. (Fost v. Superior Court (2000) 80 Cal.App.4th

724, 731; Playboy Enterprises, Inc., supra, 154 Cal.App.3d at p. 21.) Nevertheless, both

Garcia’s and Ali’s (reports and Declaration respectively) give insight into the lengths to

which the OCSD and Media Third Parties will go to further attempt to prevent this Court

and Wozniak from learning about OCSD’s intentional violation of inmates’ Sixth

Amendment right to counsel. It is clear that Ali did not select the inmates she interviewed

by connecting facial expressions to promising story lines. This certainly was not the case


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with Wulff, Bowles, Rivas, Lassiter, or Wozniak. She was directed to these inmates by

Special Handling in a well-orchestrated effort to use Lockup to obtain confessions from

inmates whose constitutional rights to counsel had attached.

Furthermore Special Handling is the same group of deputies (including but not

limited to Garcia, Grover and Tunstall), who were found to have purposefully moved

informants into cells with inmates in order to obtain confessions in violation of Massiah—a

claim they also argued was mere happenstance, luck, and/or a coincidence. As such, even

if Ali has not waived the Shield Law protection, this Court, in applying the Delaney

threshold test, should find that Wozniak has fulfilled his burden in establishing why the

unpublished material he seeks is relevant. Furthermore, the dissemination of that which

was previously unpublished further aids Wozniak in the above-referenced four-prong

balancing test as articulated in Delaney. Garcia’s report and Ali’s Declaration are a

continuation of the well-orchestrated deception by the OCSD and Ali to make the

encounters with the inmates appear as happenstance or coincidental—and without any

direction by the OCSD. Regardless of whether the Shield Law was waived as to material

and information that is still unpublished, this Court can order the production of said

material for in camera review, thus continuing to protect Media Third Parties’ interests

under the Shield Law, and Wozniak’s right to a fair trial.

B. Ali Did Waive Her Qualified First Amendment Privilege.

As previously stated, the First Amendment only provides a qualified privilege to the

media and under the three prong test as articulated in Section II of said brief, it too must

yield to Wozniak’s right to a fair trial. Furthermore, the balancing test may be unnecessary

when the holder of the qualified privilege waives said privilege by disseminating

previously unpublished material.

The doctrine of waiver is comprehensively stated in Evidence Code section 912,

subdivision (a). This waiver provision states as follows:


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Except as otherwise provided in this section, the right of any person to claim a privilege provided by Section 954 (lawyer-client privilege), 966 (lawyer referral service-client privilege), 980 (privilege for confidential marital communications), 994 (physician-patient privilege), 1014 (psychotherapist-patient privilege), 1033 (privilege of penitent), 1034 (privilege of clergy member), 1035.8 (sexual assault counselor-victim privilege), 1037.5 (domestic violence counselor-victim privilege), or 1038 (human trafficking caseworker-victim privilege) is waived with respect to a communication protected by the privilege if any holder of the privilege, without coercion, has disclosed a significant part of the communication or has consented to disclosure made by anyone. Consent to disclosure is manifested by any statement or other conduct of the holder of the privilege indicating consent to the disclosure, including failure to claim the privilege in any proceeding in which the holder has legal standing and the opportunity to claim the privilege. (Evid. Code sec. 912 (a))

For obvious reasons, the qualified First Amendment privilege is not articulated in

the above-referenced section because it pertains to a federal privilege, not a state statutory

privilege. As such, this Court can look to federal opinions for guidance as to whether Ali

waived her qualified privilege under the First Amendment when she disseminated

previously unpublished material to Garcia and the OCDA.

In Pinkard v. Johnson (M.D. Ala. 1987) 118 F.R.D. 517, 523, the court held that a

newspaper reporter waived his qualified reporter’s privilege with respect to a particular

conversation he had with the defendant because he had already provided a signed affidavit

about the conversation to plaintiff's counsel. The court further stated that “[a] reporter is

not free to give a sworn statement to a litigant, and later invoke the qualified reporter

privilege to keep this information from the Court.” (Id. at p. 523.) Moreover, “[i]n the

interests of fairness, a journalist/author should not be permitted to disclose information to

advance the interests of one litigant and then invoke the journalist's privilege to prevent

discovery of this same information by another litigant.” (Ayala v. Ayers (S.D. Cal. 2009)

668 F.Supp.2d 1248, 1250-1251; Cf. Sims v. Blot (2d Cir. 2008) 534 F.3d 117, 132


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[explaining that a waiver of testimonial privileges may be implied in circumstances where

it is called for in the interests of fairness, such as when the party attempts to use the

privilege both as a shield and a sword by making selective disclosures].)

Here, Ali has waived her qualified First Amendment privilege as to what she told

not only Garcia, but also the unidentified attorney with the OCDA’s office. Ali relied upon

her unpublished notes to refresh her recollection as to her alleged encounter with Wozniak,

and as such, she disclosed portions of said unpublished notes to Garcia in a conversation, to

the unidentified OCDA representative in a subsequent interview, and to the Court in her

Declaration. In accordance with the federal opinions, Ali must not be permitted to advance

the unlawful interests of the OCSD, with which Media Third Parties are aligned, and then

invoke the privilege to prevent the further discovery of a well-orchestrated conspiracy

between OCSD and Lockup to 1) violate inmates’ Sixth Amendment rights to counsel in

order to obtain confessions and 2) simultaneously benefit Lockup’s interests in producing

sensationalistic television episodes that are aired nationally. In the interest of fairness, this

Court should find Ali waived her qualified privilege and order the production of her notes

and e-mails for an in camera review.

Lastly, Ali’s contentions that the OCSD and/or the OCDA somehow failed to

inform her of her rights not to discuss and/or disseminate unpublished material is

untenable. Ali, a seasoned producer, contends that her discussions with both entities with

regard to previously unpublished material was somehow not voluntary and/or not a

knowing and intelligent relinquishment of her Shield Law and qualified First Amendment

rights. Ali’s reliance on Edwards v. Arizona (1981) 451 U.S. 477, for obvious reasons, is

misplaced. Ali was not in custody facing criminal charges when she was contacted by

Garcia, and subsequently by the OCDA. Neither Garcia nor the OCDA owe a duty and/or

have some obligation to inform Ali of her Shield Law and/or qualified First amendment

rights. Ali was not coerced or threatened into disseminating unpublished material with

either entity—she did so freely and voluntarily.


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Likewise, Ali’s reliance on SCI-Sacramento, supra, 54 Cal.App.4th at pp. 662-663,

is also misplaced. In SCI-Sacramento, the court of appeal stated that the television station

did not waive the Shield Law when it was ordered by the court to produce the subpoenaed

material for in camera review, even when Defense counsel was also present in chambers.

(Ibid.) Cleary, there was not a waiver in SCI-Sacramento because the media produced said

material for in camera review only in order to avoid being held in contempt. The court

further noted that:

We recently said, " ' "Waiver requires a voluntary act, knowingly done, with sufficient awareness of the relevant circumstances and likely consequences. [Citation.] There must be actual or constructive knowledge of the existence of the right to which the person is entitled. [Citation.]" (In re Marriage of Moore (1980) 113 Cal.App.3d 22, 27.) There must be ". . . an actual intention to relinquish it or conduct so inconsistent with the intent to enforce that right in question as to induce a reasonable belief that it has been relinquished." (Outboard Marine Corp. v. Superior Court (1975) 52 Cal. App.3d 30, 41.)' (In re Marriage of Perkal (1988) 203 Cal. App.3d 1198, 1203.) This court has recognized that ' "Courts examine the defense of waiver carefully in order to ensure the protection of a party's rights, especially when these rights are statutorily based." ' (Independent Union of Pub. Service Employees v. County of Sacramento (1983) 147 Cal.App.3d 482, 488, quoting Oakland Unified School Dist. v. Public Employment Relations Bd. (1981) 120 Cal.App.3d 1007, 1011.)" (In re Rodger H. (1991) 228 Cal.App.3d 1174, 1185-1186 [279 Cal.Rptr. 406].) Here, there was no intentional relinquishment of KOVR's rights under the shield law. Rather, KOVR sufficiently reserved its rights by stating in its motion that in camera review was requested "without prejudice to the right of KOVR's custodian of records to review the court's ruling and to decide whether or not to disclose the unbroadcast portions of the videotape or to suffer a judgment of contempt." Moreover, KOVR's counsel stated she had no objection to the presence of the defense during in camera review "[a]s long as it would not constitute a waiver of the Shield law . . . ." The trial court said "All right."


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Thus, there was no waiver. Moreover, the better policy is to encourage parties to allow disputed materials to be examined by the trial court in camera, because the court's review may resolve the matter expeditiously and short of a contempt adjudication. (SCI-Sacramento, supra, 54 Cal.App.4th at p. 662.)

Here, Ali was not facing contempt for failing to provide any unpublished materials.

Ali’s conduct is entirely inconsistent with a finding that she did not intentionally waive her

rights. She received a phone call from Garcia, and instead of immediately telling him that

she was refusing to engage in a discussion that would disseminate unpublished/protected

material, she decided to speak freely with him. In fact, she called Garcia back after

reviewing her notes because she maintains them for each inmate she interviewed.

Moreover, days later she also spoke to a representative of the OCDA with regard to the

previously unpublished material. As such, the factual scenario involving Ali is patently

inconsistent with the one presented in SCI-Sacramento.

///

///


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Documents

tecums (hereinafter “SDTs” or “subpoenas”) that were ...voiceofoc.org/wp-content/uploads/2015/05/Lockup-Motion-to-Compel... · On January 22, 2015, Defendant filed a Summary