An Orange County Superior Court judge Thursday said he would hand down a ruling Friday on a motion to dismiss an attempted murder case against a son of a former “Real Housewives of Orange County” cast member based on allegations of outrageous governmental misconduct.
Joshua Waring, the son of former “Real Housewives” cast member Lauri Peterson, is accused of shooting then-35-year-old Daniel Lopez outside a home in Costa Mesa on June 20, 2016. Two other people escaped injury in the drive-by attack.
Orange County Superior Court Judge Jonathan Fish on Thursday heard rare testimony from prosecutor Cindy Nichols, the assistant head of court at the Harbor Justice Center in Newport Beach, who denied listening to three calls involving Waring, an attorney and a third party.
Waring’s attorney, Joel Garson, is arguing that his client cannot get a fair trial because prosecutors and Costa Mesa police listened in on his phone calls from the Orange County Jail as Waring was acting as his own attorney in a preliminary hearing and afterward. Waring’s allegations involving the phone calls touched off a widespread scandal involving multiple defendants as the jail’s phone provider admitted a technical glitch led to the improper recording of hundreds of what should be private phone calls between inmates and attorneys.
Fish was expected to issue a ruling Feb. 26, but when he asked whether Nichols had listened to the three phone calls at issue it touched off a dispute between her and Garson, who said she acknowledged listening to the calls during informal conversations with the defense attorney.
Nichols testified she first learned of the phone calls in question when Costa Mesa police Detective George Maridakis testified about them on Jan. 8.
Nichols testified that when she inherited the case from retired prosecutor Aleta Bryant she had difficulty sorting through the evidence, which wasn’t organized the way she preferred. Nichols said she went to work identifying evidence that was required to be turned over to the defense.
While Waring, 30, was in jail his phone calls were recorded like any inmate, but Garson said the recordings should have been suspended when Waring decided to go through with his preliminary hearing acting as his own attorney. Waring discussed his court strategy on the recorded calls with his mother and girlfriend, Garson said.
Nichols said it was a time-consuming process monitoring the phone calls, which exceeded 1,100. She testified that the further away in time from Waring’s arrest, the less relevant the discussions were to the case.
At some point, Nichols testified, she “had it on in the background” as she worked on the case. She testified she often skipped ahead at times.
A day before attorneys were to begin picking a jury for a trial in January 2018, Maridakis handed over a 41-page report on the phone calls that he listened in on, Nichols said.
“I was angry with Costa mesa police for dropping this on me at such a late date,” Nichols said.
Garson questioned Nichols about whether she listened to the calls in which Waring discussed hiring a new attorney in the case. Nichols said she had, but if she had realized that Waring was talking to an attorney in any of the calls she would have alerted her supervisors at least to discuss whether the privilege was waived by having a third-party on the call.
Nichols recalled hearing Waring asking his parents and grandmother for money to hire an attorney, but not much beyond that.
After Waring’s preliminary hearing in November 2016 he was bound over for trial, but charges were later thrown out because he did not get a chance to prepare adequately for the hearing.
Prosecutors refiled charges, prompting Garson to file a motion a year ago arguing his client could not get a fair trial because is constitutional rights were violated when his calls were improperly recorded.
Nichols and co-counsel John Maxfield are arguing that Waring did not raise any flags while making the calls and that he should have asserted his rights as his own attorney.
“Defendant failed to make sure his phone calls were unmonitored if that was what he desired,” the prosecutors wrote.
“Defendant was ultimately responsible. Defendant, while in pro per status, was in charge of his own case… Defendant never made any request to have a number added to the (jail phone provider) GTEL database so any phone conversations to that number would not be monitored or recorded. He never made any request to unmonitored collect phone calls.”
Garson said in court filings that requests from some inmates to receive unmonitored calls “fell on deaf ears.”
He also argued that for an inmate to ask for unmonitored calls, he or she would have to first know they were being recorded. Sheriff’s deputies have testified in the case that there were no procedures in place to even handle requests for unmonitored calls, Garson argued.
Garson said he believed the prior prosecutor on the case, Aleta Bryant, did commit misconduct in the case. Garson argued that Maridakis “double checked” with Bryant on the day Waring went forward with his case without an attorney to see if the calls could continue to be recorded.
“She doesn’t stop him from doing it and he continues to brief her on it,” Garson said. “The only reasonable inference is he was listening to (the recorded calls) for defense strategy. He didn’t turn the volume down.”
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