An Orange County Superior Court judge Thursday granted a motion for a new trial, based on allegations of jail informant misconduct, for a 26-year-old man convicted last year of killing a Santa Ana man nine years ago.
The allegations of widespread outrageous governmental misconduct in the use of jailhouse snitches arising out of the case of Scott Dekraai, the worst mass killer in the county’s history, spurred Eric Vasquez Ortiz’s attorney to seek a new trial for his client.
Ortiz was convicted in a jury trial on Jan. 28, 2014, of first-degree murder with sentencing enhancements for gang activity and the vicarious discharge of a firearm and attempted murder.
Ortiz faced life in prison without the possibility of parole, but his attorney, Rudy Loewenstein, argued that because he was 17 at the time of the 2006 shooting that punishment would be precluded by U.S. Supreme Court rulings since the crime.
Ortiz will return to court Dec. 16 for a pretrial hearing, followed by a trial-readiness conference on Jan. 4. His new trial date is Jan. 5.
Orange County Superior Court Judge Richard King ruled Ortiz couldn’t get a fair hearing on his allegations of misconduct because four sheriff’s deputies invoked their Fifth Amendment rights against incrimination during an evidentiary hearing. So King granted the motion for a new trial.
Loewenstein argues the government committed a so-called Massiah violation, meaning inmate Donald Geary was working as an informant for authorities when he illegally got Ortiz, who was represented by an attorney, to make statements implicating himself in the Oct. 23, 2006, shooting.
“Mr. Geary was a government agent when he got a supposed confession from my client, and you can’t do that,” Loewenstein said. “That’s illegal conduct, an illegal use of an informant when you have an inmate who is already represented by an attorney.”
King concluded “there was no way for us to know” if Geary was working for the government “before the (first trial) and it most probably made a difference to the jury and the result,” Loewenstein said.
It’s not clear if prosecutors will pursue a new trial on the other evidence they have. Deputy District Attorney Seton Hunt did not immediately respond to a request for comment.
Former Orange County Deputy District Attorney Erik Petersen prosecuted Ortiz in last year’s trial. Many of his cases have come under new scrutiny amid allegations of widespread, institutionalized government misconduct in the use of jailhouse informants.
Petersen was removed from a jailhouse beating case last year when Orange County Superior Court Judge Thomas Goethals ruled he committed a so-called Brady violation, which requires prosecutors to turn all of their evidence, with a few exceptions, to defense attorneys.
Goethals also removed the Orange County District Attorney’s Office from prosecuting the death penalty phase for Dekraai, who pleaded guilty to the Salon Meritage beauty salon rampage. That ruling is under appeal.
In February, Leonel Vega, 34, accepted a plea deal when prosecutors agreed to have his first-degree murder conviction overturned because an ex- Santa Ana detective got a jailhouse informant to press Vega for information on his case, a violation of his Sixth Amendment rights because he was at that time represented by a lawyer.
Vega was expected to be freed from prison within the next few years.
Evidence uncovered in the Dekraai case also affected two other cases. Isaac John Palacios pleaded guilty to second-degree murder and was released from custody after receiving credit for time served in jail. Attempted murder and solicitation of murder charges were dropped against Joseph Martin Govey because of similar issues raised about informants in his case.
Ortiz was accused of driving into a rival gang territory and participating in the fatal shooting of 51-year-old Emeterio Adame, who was talking to another man who his assailants figured was a rival gang member. The other man, who was confined to a wheelchair, was also injured in the shooting.
Loewenstein said Adame’s son was murdered only a few weeks before the shooting.
“There was a question whether Mr. Ortiz had anything to do with it, whether he was the shooter, and that’s why they didn’t file against him for five years because they didn’t have any real evidence other than the co-defendant’s” testimony, Loewenstein said.
Before Ortiz’s trial, Petersen assured Loewenstein that Geary was not a government agent, the attorney said.
“I had no reason to disbelieve him, and there was no evidence to the contrary, but three days after my guilty verdict (Dekraai’s attorney, Scott Sanders) filed his motion in Dekraai and that led me to follow up,” Loewenstein said.
— City News Service