By PAUL ANDERSON
City News Service
A former federal prosecutor who now is an Orange County Superior Court judge testified today at a hearing on an alleged conspiracy to violate the rights of multiple Orange County defendants, including convicted mass killer Scott Dekraai, that she provided guidance to investigators on how to legally use jailhouse informants.
Scott Sanders of the Orange County Public Defender's Office questioned Orange County Superior Court Judge Terri Flynn-Peister about a case involving a defendant whose murder conviction was tossed out this week, stemming from allegations Sanders made in a 500-plus page motion he filed earlier this year.
Sanders also questioned Flynn-Peister about how jailhouse informants were handled during the Operation Black Flag federal and state crackdown on the Mexican Mafia and violence in jails and prisons.
In an already unusual hearing, even Orange County Superior Court Judge Thomas Goethals questioned his fellow jurist.
Flynn-Peister testified she authored a memo to investigators outlining how they could avoid violating the rights of inmates through the use of informants in custody by making sure they did not question defendants on cases in which they had already established an attorney-client relationship.
Flynn-Peister testified that she told the investigators to notify her if the informants received information that could represent a violation of an inmate's rights, so federal prosecutors could decide what to do with the evidence. Her chief aim, she testified, was to "wall off" information that could jeopardize a state case or violate an inmate's rights.
Flynn-Peister said she did not get much involved in the handling, otherwise, of jailhouse informants.
That contradicts the testimony of some members of the task force, including sheriff's Deputy Seth Tunstall and Deputy District Attorney Erik Petersen, who claimed Flynn-Peister ordered discovery withheld.
Senior Deputy District Attorney Howard Gundy, sounding at times like he was questioning an adversarial witness in a criminal trial, tried to chip away at Flynn-Peister's credibility.
Sanders' motion claimed prosecutors illegally withheld evidence from defense attorneys and sheriff's officials and had jailhouse informants question defendants who had asked for an attorney, a Sixth Amendment violation.
The murder case against Leonel Santiago Vega was vacated on Monday, meaning he will receive a new trial for a 2004 gang-related killing.
Prosecutors recognized there were problems with Vega's conviction, which included failure to turn over evidence to Vega's attorney as well as the way jailhouse informant Oscar Moriel questioned Vega in custody, Assistant District Attorney Marc Rozenberg said.
Prosecutors intend to try to convict Vega again, Rozenberg said. A hearing is scheduled for Sept. 12 to set a trial date.
Much of today's questioning from the attorneys focused on the Vega case. During Vega's trial his attorney complained he had been given four pages of notes from Moriel but was sure there was more.
Flynn-Peister testified there were close to 200 pages of notes from Moriel.
The former federal prosecutor testified she was "very concerned" about using jailhouse informants because of the potential for violations of defendants' rights and the possibility it could jeopardize the pending cases in Operation Black Flag.
That concern inspired the memo she gave to the investigators on the federally funded Santa Ana gang task force about how to handle informants, she testified.
Goethals directly asked Flynn-Peister if she considered herself a "filter" of Moriel's notes, which she denied.
Goethals, referring to Petersen's earlier testimony in the hearing, noted the prosecutor said he was told by Tunstall that Flynn-Peister stopped the handover of Moriel's notes, except for four pages, to defense attorneys.
"Do you ever recall reviewing Mr. Moriel's notes in any quantity with Deputy Tunstall or any member of law enforcement?.. (Or tell) state prosecutors (release) these four pages and nothing else?" Goethals asked the judge, who replied, "No."
"As you answer that question readily is it possible there's a failure of memory?" Goethals added.
"No," Flynn-Peister replied.
"Did you ever direct a case agent not to deliver discovery to a prosecutor in this case?" Goethals asked.
"No," Flynn-Peister testified.
Flynn-Peister said the only time she discussed an issue with jailhouse informants was when one of the investigators asked what could be done with information about a case unrelated to Black Flag. Flynn-Peister said since there were no issues with the information violating the inmates rights and it had nothing to do with Operation Black Flag that it could be turned over to Petersen to do with what he wished.
Gundy repeatedly challenged Flynn-Peister's assertions that she left Petersen alone to work his cases while she focused on her own, and that she did not go over most of the notes from informants until she was ready to seek indictments.
Sanders is seeking to have the District Attorney's Office removed from the case and have the death penalty eliminated as punishment for Dekraai.
The hearing, which started in mid-March, will finish testimony Monday when Tunstall is recalled.
Goethals said he would like the attorneys to file their final briefs on July 21, with closing arguments on July 25. A ruling could come be issued by the end of July.
Dekraai, who opened fire at the Seal Beach beauty salon where his ex- wife worked, pleaded guilty to eight counts of murder and one count of attempted murder in May. The penalty phase of his trial is scheduled for August.