Orange County Superior Court Judge John Conley is being rejected by attorneys at nearly the same pace as fellow jurist Thomas Goethals, who booted the District Attorney’s Office from the case of mass killer Scott Dekraai, records show.
An examination of filings from attorneys seeking recusals of judges assigned to cases from Jan. 1, 2016, through Feb. 28 of this year shows Conley was rejected nine times, all by defense attorneys. Goethals was rejected 11 times, all by prosecutors.
The main reason appears to be the way they handled issues related to the jailhouse snitch scandal, which stems from the Dekraai case and involves allegations of abuses of informants used by law enforcement officials to obtain incriminating evidence against other inmates. In some cases, attorneys have argued, the constitutional rights of defendants were violated.
While Goethals recused the District Attorney’s Office from Dekraai’s case, Conley rejected efforts to do the same in the capital case against Daniel Patrick Wozniak, a double killer represented by Dekraai’s attorney, Scott Sanders of the Orange County Public Defender’s Office.
Several attorneys, who agreed to speak anonymously, told City News Service there’s no concentrated effort to “blanket paper” Conley as prosecutors were accused of doing to Goethals when he started issuing adverse rulings to prosecutors.
But one prominent defense attorney said the uptick in “papering” Conley can be traced back to comments the judge made when ruling against a dismissal of the death penalty against Wozniak.
“He showed his bias against Sanders,” the attorney said of the ruling. “It was such a personal bias against the guy. It showed that his attitude was he wasn’t going to listen to any evidence. It was ridiculous.”
The attorney papered Conley himself recently in one case because he felt that he wouldn’t get a fair shake before the judge in light of how he handled the Wozniak case.
“If you show your bias like the way he showed it, then it would be malpractice for you to go in there again,” he said.
The practice of “blanket papering” has happened occasionally in the past, but it is rare, the attorney said.
Every attorney has a right to just file a motion to rejecting a judge if their case has been sent to that jurist for trial. That right was recently upheld by the Fourth District Court of Appeal when a judge in Orange County denied the recusal motions against Goethals, arguing it was gumming up the court system.
The appellate justices said they didn’t like blanket papering, but suggested it was up to lawmakers to remedy the problem because legal precedence prevented them from doing so.
Since January 2010, Goethals has been papered 143 times, with all but two coming from prosecutors. In that same period, Conley was papered 13 times and always by defense attorneys.
The uptick in the papering of Conley began in February of 2016, just a few months following a ruling by Conley rejecting Sanders’ motion for dismissal of the death penalty based on allegations of outrageous governmental misconduct in the Wozniak case.
Sanders is pushing for the same sanction in the Dekraai case. Goethals has previously ruled against Sanders on that motion, but new evidence has given new life to Sanders’ efforts.
In Wozniak’s case, Sanders argued, as he did in Dekraai’s case, that informant Fernando Perez made contact with both defendants to get incriminating statements from them to pass onto his handlers in exchange for help getting him a lighter sentence on gun charges.
Prosecutors used Perez’s information to get permission to wire Dekraai’s cell to capture insensitive remarks he made about the eight murders he committed at a Seal Beach salon, which they wanted to use in the penalty phase of his capital case. Goethals has prevented prosecutors from using those comments in the penalty phase now as a sanction for findings he made regarding outrageous governmental misconduct.
In Wozniak’s case, however, when Perez tried to pass on the comments he heard from his conversations with the defendant, prosecutors ultimately said no thanks because they already had a confession and the notes from Perez were deemed irrelevant. Another key difference was the Costa Mesa Police Department was the sole agency involved in the investigation of Wozniak and the sheriff just housed the defendant, prosecutors argued.
In Conley’s Oct. 30, 2015, ruling, he praised Sanders for “amazing diligence and unprecedented thoroughness of preparation” in the Wozniak case, but then said the attorney’s arguments in legal papers displayed an “informal style, more consistent with a university research paper than a legal brief.”
Defense attorney Michael Molfetta said “the perception of Judge Conley is that he was a lifer in the prosecutors’ office and that (in) some of the more high-profile cases he’s had recently, he’s made decisions that went for the prosecution. However, I think it’s sort of shortsighted because there’s two things about him that you can’t deny — one, he’s very, very smart and, two, he’s very fair.”
Molfetta added, “I’ve tried cases with him as a prosecutor and appeared before him as a defense attorney.”
Molfetta said attorneys don’t always paper a judge because of the way they rule or a perceived bias.
“I papered one judge routinely simply because his bailiff, who is no longer a bailiff, would talk to the jury and tell them jokes and play music for them and it was just too much,” Molfetta said.
“I do it more for the pleasantness of the experience in the courtroom than for a strategic advantage,” Molfetta said. “We live in a world where they made decisions and sometimes they go for you and sometimes they go against you. You can’t sit there and say he won’t rule in my favor so I’m going to paper him. It’s childish and shortsighted.”
Molfetta said the practice used to be infrequent “and now it’s done much more routinely.”
— City News Service
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