Deputies take the Fifth, complicating yet another jail snitch case

In a Santa Ana courtroom, Orange County Sheriff’s Deputy Seth Tunstall raised his right hand to take the oath and stepped onto the witness stand.

“You are employed by the Orange County Sheirff’s Department?” a defense attorney asked.

“After conferring with my attorney I’m going to decline to answer on Fifth Amendment grounds,” Tunstall replied.

Tunstall was followed by three more deputies called to testify in a hearing on a gang-related murder. One by one, each deputy said the same thing: nothing.

All four evoked their rights against self-incrimination, declining to reveal even the most basic information, including where they work and whether they attended a police academy.

The refusal of the four Orange County sheriff’s deputies to testify this month means a Santa Ana man can’t receive a fair hearing in a case that could send him to prison for life, his attorney contends. The criminal case is one of many ensnared in Orange County’s jailhouse informant scandal, which this year prompted a judge to remove the entire staff of the District Attorney’s Office from the trial in the county’s worst mass shooting.

The latest legal challenge comes from Eric Ortiz, a 26-year-old gang member convicted in January for a 2011 fatal shooting in Santa Ana. Before Ortiz could be sentenced, however, Superior Court Judge Richard King granted him a hearing on whether he should receive a new trial based on disclosures about the use of a jailhouse snitch in his prosecution.

Rudolph Loewenstein, Ortiz’s defense attorney, contends four deputies – Tunstall and colleagues Benjamin Garcia, William Grover and Bryan Larson – possess key information as to how authorities violated Ortiz’s constitutional rights by using an informant to gather incriminating statements.

But in a weeklong hearing this month, the case hit a snag when the four deputies invoked their Fifth Amendment rights. All four came to court with their own defense attorneys.

“It’s shocking that we have members of law enforcement sworn to uphold the law and they’re refusing to testify because their answers might incriminate them,” Loewenstein said. “If that doesn’t shake the public’s faith in the system, I don’t know what does.”

Peace officer rights

The attorney noted that King also has said the deputies have relevant information about the case.

It is not yet clear whether the deputies will face any repercussions for refusing to testify.

Orange County Sheriff Sandra Hutchens said in a statement the department is reviewing the circumstances behind each deputy’s decision and will “pursue additional investigations and manage assignments as needed.”

“I take the matter very seriously and have a number of concerns as I continue to monitor and review the facts emerging across different investigations and court cases,” Hutchens said.

Tom Dominguez, president of the Association of Orange County Deputy Sheriffs, said peace officers are afforded the same constitutional rights as all citizens.

“They do not lose those constitutional protections when they pin on the badge,” he said.

The Fifth Amendment fully applies to law enforcement, but it’s “exceptionally rare” for a police officer or deputy to invoke the Fifth Amendment as a witness in a criminal case, said Larry Rosenthal, a law professor at Chapman University.

The Ortiz case, Rosenthal said, is additional fallout from the “sloppy handling of informants” by the District Attorney’s Office. “The office has jeopardized what may turn out to be dozens of very serious cases from their own carelessness,” he said.

Several cases have now been affected by disclosures alleging prosecutors and police improperly used jailhouse informants and withheld evidence. Assistant Public Defender Scott Sanders and other defense attorneys are challenging many others.

Two other murder cases and two attempted-murder cases have resulted in plea deals and reduced sentences in the wake of the scandal.

Death penalty trial stalled

In an unprecedented move in March, Superior Court Judge Thomas Goethals removed the entire District Attorney’s Office from the penalty phase for the trial of Scott Dekraai, who admitted killing eight people at a Seal Beach salon in 2011.

In his ruling, Goethals said deputies Tunstall and Garcia, who both worked in the Orange County Jail as part of a special handling unit, “either intentionally lied or willfully withheld material evidence” about the existence of so-called TRED records, which log movements of inmates, including jailhouse informants.

Authorities have not said whether the deputies will face possible charges as a result of their testimony in the Dekraai case. District Attorney Chief of Staff Susan Kang Schroeder deferred questions to the state Attorney General’s Office, which is investigating the matter.

Tunstall, a 14-year veteran and a statewide expert on the Mexican Mafia, was the first deputy called to testify in the Ortiz case on Oct. 6. He declined to answer all questions under oath.

Tunstall also has refused to testify as a key witness in cases involving the Mexican Mafia, which has forced prosecutors to reconsider charges.

Following the testimony, King asked how basic questions on Tunstall’s professional background could lead to self-incrimination.

“What crime would his testimony reveal that he would be subject to criminal liability?” the judge asked.

In response, Tunstall’s attorney Paul Meyer said foundational questions on Tunstall’s employment are “links in a chain” that lead to areas where he could raise the Fifth Amendment “without any question.”

Meyer noted that invoking constitutional rights is not an admission of wrongdoing.

“A witness who takes the Fifth or invokes the Fifth Amendment is doing so based on a possibility of a possible theory, even if it’s disputed and it’s not well established in fact,” he said in court.

Waiting for the appeals

The judge ruled Oct. 8 that all four deputies had met their burden of proof to invoke the Fifth Amendment because of possible exposure to charges of perjury and obstruction of justice related to the Dekraai case.

Meyer, in a statement, said the deputies were all advised by their attorneys to invoke their rights.

“While we believe that Judge Goethals’ ruling will be proven wrong by the appellate courts, and by the facts, an invocation of rights was the right call until the pending investigations are concluded,” Meyer said.

Ortiz was arrested in 2011, five years after the shooting death of Emeterio Adame, 51, outside a home in Santa Ana. When a key witness fell through before the trial, Loewenstein contends authorities conspired to place Ortiz next to informant and convicted burglar Donald Geary inside the Orange County Jail to gain incriminating statements.

Under the Massiah rule, authorities are barred from attempting to elicit incriminating statements from a suspect who is already represented by an attorney.

Geary, who testified in the case, said he was not prompted by law enforcement to question Ortiz. Both prosecutors who handled the case, Eric Peterson and, more recently, Seton Hunt, denied any misconduct in the case.

Ortiz is due back in court Oct. 30, when King will hear final arguments. The judge is then expected to issue a ruling on whether to move forward with sentencing or grant the defense’s request for a new trial.

District Attorney Tony Rackauckas has said his prosecutors made “missteps” but said those were not intentional. Rackauckas in the past year conducted an in-house investigation that has resulted in office changes to better track the use of informants. Rackauckas also has enlisted a committee of legal experts to review his office’s use of jailhouse informants. The committee’s findings are due by the end of the year.

Contact the writer:, 714-834-3773

Watchdog: County ponders jailhouse snitch investigation

Two county supervisors on Monday will consider launching a county-run investigation into the district attorney’s use of jailhouse snitches and the withholding of evidence.

In a report released late Friday, the county’s recently hired consultant on law enforcement oversight recommended the Office of Independent Review be expanded to take a lead role in investigating accusations that local authorities illegally used jailhouse informants.

Special Counsel Michael Gennaco is pushing to expand the civilian office’s oversight role past the Sheriff’s Department to include the district attorney, public defender and all county offices – with an eye toward taking on the informant crisis and other problems.

“It’s a holistic approach,” said Gennaco, a former federal prosecutor who previously was chief attorney for the Los Angeles Office of Independent Review. “I want the elected stakeholders to begin thinking about this as a possible way to enhance oversight.”

A county committee comprised of two supervisors, Chairman Todd Spitzer and Andrew Do – both former prosecutors – will hold a special meeting Monday to review the proposal.

The state Attorney General’s Office has launched an investigation, but a county probe would be the first time supervisors weighed in with an independent civilian review of a controversy that has upended several criminal cases in Orange County and threatens to unravel others.

In July, a memo from the county counsel to the Board of Supervisors said the U.S. Department of Justice also is “keeping an eye” on the county’s response to the jailhouse informant controversy.

The Sheriff’s Department has begun an internal probe into the use of informants. Also, the district attorney has assembled a panel of outside experts to look at the issue, which the Public Defender’s Office contends has been a problem in the county for 30 years.

Gennaco came into the picture in August, when supervisors narrowly voted to hire him for a four-month, $40,000 contract to help oversee the Sheriff’s Department and its embattled civilian review office headed by Stephen Connelly. Gennaco previously investigated the 2012 death of Kelly Thomas, a mentally ill homeless man who died after an altercation with Fullerton police.

On Friday night, Gennaco said a more centralized approach is needed in the investigation of jailhouse informants.

“Right now the departments are working independently of each other,” he said. “Could it be more helpful to have a concerted effort?”

Spitzer welcomes the idea of the county looking into the informant scandal.

“The Board of Supervisors is supposed to oversee all county departments but has been largely helpless to weigh in on critical issues impacting law enforcement because of a weak office of independent review,” Spitzer said. “A model to build community trust and awareness is critical.”

Supervisor Do offered similar sentiments Friday night. “I’m committed to increasing independent oversight of every aspect of county government, including law enforcement,” he said.

“The people of Orange County expect their government to be accountable and transparent … . At next week’s meeting, the public has an opportunity to voice their opinions. Before making any decision on an oversight system, I look forward to hearing from my constituents about the right approach for our county.”

District Attorney Tony Rackauckas’ chief of staff, Susan Kang Schroeder, declined comment late Friday because the office had not seen the report. Sheriff Sandra Hutchens also declined for the same reason.

The use of jailhouse informants on defendants who have hired lawyers and the withholding of evidence has resulted in lower sentences in two murder cases and two attempted murder cases. Missteps also prompted a Superior Court judge to remove the entire District Attorney’s Office from a high-profile mass murder case.

The revelations have reverberated nationally. On Sept. 30, a New York Times editorial called for the U.S. Department of Justice to launch a “thorough investigation,” citing “the blatant and systematic misconduct in the Orange County District Attorney’s Office.”

Rackauckas has said his prosecutors made “missteps” but characterized those as unintentional.

He’s also conducted an in-house investigation that has resulted in policies aimed at improving the way the office tracks the use of informants. Rackauckas also has enlisted a committee of legal experts to review his office’s use of jailhouse informants.

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Week 7: Here are the tackles, touchdowns and fan fun from Orange County high school football

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Another surprise for Esperanza student – she’s homecoming queen!

It started with a surprise, public invitation from her close friend last month to the Esperanza Senior high school homecoming dance– a moment captured on video that has actually since gone viral.

Then April Clark, which has Down syndrome, obtained one more shock at the Anaheim college’s homecoming game Friday night– at half-time, April was named homecoming queen. For April, the dance tonight will now be a royal night to consider.

Fewer limos, more Converse: This is what homecoming in Orange County looks like this year

When Jeff Bergman was in high school in Anaheim Hills, he would dress up in slacks and a shirt and tie for the homecoming dance, make a dinner reservation for his date and pitch in with his guy friends for a limo.

Fast forward a couple decades. Bergman, 48, president and CEO of Diamond Limos Inc., witnesses a different homecoming scene than what he experienced.

“There’s not too many young men who are making the calls now, it’s more the young women who are making the calls and reservations – or their parents, usually the moms. Sometimes, the dads,” he said. “It’s not as formal an event as it was maybe 20 years ago.”

It’s not only high schoolers’ etiquette in booking a limo – if they even do – that has gotten more casual, but their dress and what they expect at the homecoming dance. Fancy garb is often reserved for prom, and students are less concerned with an elaborate ride and more interested in hearing their favorite tunes.

A sun dress or romper paired with Converse Chuck Taylor sneakers or sandals for young women, and a collared shirt and khakis for guys, have been the dress code at Corona del Mar High since Associated Student Body leaders changed the homecoming dance from its dressier, costume-centered attire two years ago.

The year before the switch, only about 200 students attended, said ASB dance commissioner Delaney Carroll, 18. Last year and on Friday, at least 600 tickets were sold.

“We didn’t feel that we were getting the turnout we wanted, we were underselling tickets, it was hard to get participation,” Carroll said. “Now students don’t have to go out of their way.”

Diamond Limos driver Robert Miley, who’s been busy chauffeuring students to homecoming dances in Irvine and Newport Coast in the past few weeks, said he’s seen ladies wear more summer dresses than semi-formal dresses and fewer guys with ties. Heels are a scarcer sight, too.

“Chuck Taylors I’ve been seeing off and on in the last four years but it’s been more apparent in the last two years – you see girls and guys are trying to match Chuck Taylors or something,” Miley, 35, said. “It’s pretty funny to me.”

Casual has been the way to go at Woodbridge High for nearly a decade. The Irvine school’s back-to-school dance, a “Jersey Jam” in which students went stag and wore their favorite sports jersey or bought one from the class council, was extremely popular. Close to half of the student body participated while homecoming attendance suffered at about 200 students.

Since Jersey Jam became the Homecoming dance, it has reached its 1,000-student capacity many years. As of Thursday, two days before the dance, 891 tickets had been purchased, said senior and pep rally commissioner Eileen Lee, 16.

“It’s one of the most popular events of the year. It’s just been a tradition and I prefer it more than a formal homecoming,” Lee said, adding that because different colored jerseys are sold to each grade level, “It’s a really cool way to unite one entire class.”

Jersey Jam has also become increasingly popular because it is less costly, with tickets ranging from $5 to $20, said Woodbridge Principal Christopher Krebs.

“The age of the sort of traditional dances you think about 20 to 30 years ago was going away and I could speculate a lot of it has to do with the cost of these events coupled with the cost of being a high school student,” Krebs said.

Even the Jersey Jam is formal by another high school’s homecoming dance standards.

Students at La Quinta High in Garden Grove attend the dance, held Friday this year, looking much like they do during the school day, said La Quinta Assistant Principal Beth Fisher. More than anything, they are interested in who will DJ and that he or she plays what they like – house music.

“They really are focused on dancing, not necessarily on ‘Where are we going to dinner?’ or ‘How are we going to look?’” Fisher said. “They just want to have a good social night with their friends.”

This homecoming season, Bellaz Tailoring and Tuxedo Rentals in Irvine have received about 15 rental orders compared to 50 more than five years ago, said owner Muhammad Asif.

“They don’t want to spend too much money for homecoming and they can go a little less dressy so they have more spending money for the prom,” Asif said.

While homecoming dances in Orange County are trending toward casual, some schools still keep it traditional – relatively speaking.

Yorba Linda High, a young campus opened in 2009, hosts a semi-formal homecoming dance, but that doesn’t mean students are turned away if they show up in Converse shoes.

“There’s such a wide range, that if students don’t want to spend the money, they don’t feel that they have to,” said Shea Runge, Yorba Linda High’s dean of activities.

Dozens of students at Crean Lutheran High in Irvine went to their dance Oct. 9 as couples in semi-formal attire with corsages and boutonnieres, but tennis shoes and off-the-grid fashion statements stood out.

Junior Neil Moffatt, 16, a guest from Woodbridge High, donned an emerald green vest and mask from Hot Topic as a DC Comics villain.

Junior Johnny Wang, 17, sported white hairspray and $1,000 Christian Louboutin shoes with gold spikes that he didn’t buy just for homecoming.

“It’s just kind of fashionable,” Wang said. “This is not really like a prom, it’s like a big party.”

Contact the writer: 714-796-7762 or Twitter: @JessicaGKwong