An Orange County Superior Court judge Friday denied a motion to dismiss an attempted murder case against the son of a former “Real Housewives of OC” cast member, based on allegations of outrageous governmental misconduct for the recording of his phone calls while he acted as his own attorney.
Orange County Superior Court Judge Jonathan Fish sided with prosecutors, who argued that Joshua Waring, 30, was warned that his calls were subject to recording by a boilerplate announcement at the beginning of the calls. Fish said Waring did not take advantage of his right to make sure he had private phone calls.
Fish, however, praised Waring’s attorney, Joel Garson, for uncovering a scandal involving the Orange County Sheriff’s Department’s phone contractor, GTEL, which has admitted improperly recording hundreds of phone calls from inmates to attorneys, leading to a separate case that could have an impact on multiple high-profile murder and violent crime cases.
“There is no evidence in this case of the (Orange County Sheriff’s Department) violating the court order to grant access to the defendant to unmonitored collect calls in Waring’s case because Waring never asked for that access,” Fish wrote in his ruling. “He asked for many other things, including to be released early from his administrative punishment in the jail so that he could prepare for his case. Perhaps the (Sheriff’s Department) may have categorically denied his request for access, but that we will never know, although we can guess based on the evidence… proffered by the defense. Perhaps the (sheriff’s department) has played fast and loose with granting access to other (defendants who represent themselves legally), but they are not before this court.”
Fish added that he “cannot laud enough the tireless and dogged efforts by Mr. Garson to uncover some far-reaching intrusions — of constitutional dimension. He ferreted out what could be argued as an indifference by the county when no attorney on the `private list’ was apprised of the epic mishap of the more than one thousand accidental expulsions from (a do-not-record) list.”
Garson also “spotlighted the fact that there is no (sheriff’s) policy or procedure to comply with the `access to unmonitored phone calls ‘ order,” Fish continued. “But most of all, he uncovered the fact that thousands of confidential calls with an attorney were recorded and possibly accessed. This ruling is based solely on the conduct as it pertains to Waring.”
The judge said he could find no evidence that there was an “unjustifiable intent” to “harm” Waring by the prosecutors on his case.
A central focus of the case was on calls Waring made that included his parents and a girlfriend at the time of his preliminary hearing, but Fish downplayed the impact of a Costa Mesa detective eavesdropping on them.
Fish acknowledged that Waring gave the girlfriend and his mother, Lauri Peterson, “rudimentary investigation assignments… for his defense.”
But the “musings and theorizing among those three do not constitute sophisticated legal analysis,” Fish wrote.
Fish singled out GTEL and county officials for not taking seriously the problems with improper recordings of jail inmate calls. He noted that more than 1,200 phone numbers, which had been on a private list, were dropped because of a software upgrade in 2015. The company reported 1,079 calls from nearly 90 numbers were recorded and 57 were accessed by law enforcement.
“Some of these were even given to prosecutors from the OCDA,” Fish wrote. “The OCDA approximates this occurred in eight to 10 cases.”
“Alarmingly, neither county counsel nor the (sheriff’s department), both aware of this issue, warned the public or the local bar,” Fish wrote. “They did make remedial efforts, but their scramble to control the damage did not include alerting inmates or counsel. It is only the efforts of Mr. Garson in this hearing that has brought this to the forefront so that efforts can be made to make this right by use of court-appointed special masters.”
Waring, who is next due in court on Tuesday for a pretrial hearing, 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.
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