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.
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