SANTA ANA (CNS) - Two deputies accused of being involved in pepper- ball spraying a jail wing housing the son of a former ``Real Housewives of Orange County'' cast member, as well as another deputy who was overseeing the defendant when he was attacked in the jail by another inmate, repeatedly invoked their constitutional rights against self-incrimination at a court hearing today.
The hearing stemmed from Joshua Waring's attempt to lower his $1 million bail on three counts of attempted murder or be released on his own recognizance. Waring, 30, contends sheriff's deputies have failed to protect him while he is in custody.
The deputies did answer mostly hypothetical questions about procedures in the jails, but their attorney advised them to invoke their Fifth Amendment right against incriminating themselves.
Senior Deputy District Attorney Cindy Nichols told Orange County Superior Court Judge Jonathan Fish that on Tuesday night, she received multiple documents of police reports on the pepper ball incident that occurred June 24 of last year. Previously, when Waring's attorney, Joel Garson, subpoenaed records on the pepper balling, he was told by county officials there were none.
Last month, Fish lifted a protective order on video of the pepper ball incident, allowing Garson to turn it over to Nichols, who referred the evidence to her office's special prosecutions unit. Fish turned over the newly surfaced police reports to Garson today.
A county custodian of records who previously said there were no police reports is scheduled to testify next Wednesday.
Nichols was unaware that the pepper ball case had been previously reviewed by prosecutors and declined to file charges, according to Kimberly Edds, a spokeswoman for the Orange County District Attorney's Office. But prosecutors have decided to reconsider the pepper ball incident and the attack on Waring, Edds said.
After the pepper ball incident, the two deputies involved were placed on administrative leave, said Carrie Braun, a spokeswoman for the Orange County Sheriff's Department. An internal investigation was conducted, but officials will not reveal the outcome, citing state law regarding law enforcement officers' rights, Braun said.
The Orange County Sheriff's Department began an investigation after Waring was attacked by a blade-wielding inmate on Oct. 9 at the Intake-Release Center in Santa Ana. No charges have been filed, according to Garson.
Sheriff's investigators are also conducting an internal review, but no deputies have been put on leave, Braun said.
Garson said that according to a heavily redacted preliminary report prepared by sheriff's personnel, a command was made over a loudspeaker for Jose Dejesus Guzman to get back in his cell, but he closed the door from the outside and hid behind the stairs to wait for Waring and allegedly pounced on him.
Waring needed 20 staples, as well as stitches and butterfly bandages on his face, to treat his wounds, his attorney said.
Guzman was also in protective custody and supposed to have been separated from other inmates, according to Garson, who is seeking unredacted copies of the reports on the attack.
Deputy Stephen Hipple, who has been with the department for a few months, testified about various procedures for making sure inmates in protective custody do not interact with each other. Hipple said deputies get a visual on all the inmates to make sure they are in their cells as well as checking a console that indicates the doors are closed.
When asked if he had been trained how to look out for blind spots, he invoked the Fifth Amendment.
Hipple testified how inmates are allowed to go to another wing to make a call if the phones in their sector are broken and what procedures are followed to make sure all of the other inmates in the wing are locked up while the other inmate is led back to his cell.
Deputies Ever Zeyala and Ryan Hansen acknowledged they were on duty in Waring's module in the Intake-Release Center when the pepper ball incident happened, but they repeatedly invoked their Fifth Amendment rights regarding any details. The two testified they spoke with investigators about the incident.
Fish is also considering whether to let the public gain access to jail video of an incident in which sheriff's deputies pepper-balled a jail module of the Intake-Release Center, where Waring was housed, in June 2018. Garson has argued that it is another example of how Waring is not being protected while in custody.
Waring testified last month that the dozen inmates in the module were asleep with lights out for about an hour before two deputies came in, with one firing off pepper balls. Garson is seeking reports from county officials regarding an internal review of that incident.
``At this point, our focus is on (Waring's) safety and his ability to go to trial alive,'' Garson said after today's hearing.
Garson suspects that Waring was targeted for attacks when he raised issues of outrageous governmental misconduct regarding the improper recording of phone calls from inmates to their attorneys.
Garson noted that Guzman, the inmate accused of attacking Waring, has a violent criminal history and was facing a case of possession of a deadly weapon charge and resisting a peace officer while in custody on June 27 of last year.
``I think they're after him and have been for a long time,'' Garson said of some deputies. ``He's even been told (by deputies) they will retaliate against him ... We believe the deputies set up the attack ... This guy (Guzman) is a known attacker. Of all the guys they should have expected it from, it was this guy.''
Waring has outlined another recent attack in a federal class-action lawsuit in which he is a plaintiff.
While Waring was awaiting trial on attempted murder charges, he was thrown in ``the hole'' for trying to fix a television in the dayroom, he said.
Waring spent 10 days in solitary confinement and was then taken to another part of the jail where, he said, gang members ``green-lighted'' him for an attack.
When Waring raised concerns about his safety and asked to see a psychiatrist, he was told that was only possible if he felt suicidal, he said. Waring alleged deputies later ``threw me naked ... into a tiny all-cement cell filthy with feces'' and a broken toilet.
Waring alleged he was denied medication for seizures while in the cell and suffered a seizure while confined there. Last week, Fish ordered doctors to examine Waring and provide him with his medication.
``The safety and security of inmates in our custody is our primary responsibility as a Sheriff's Department,'' Braun said in a statement. ``We protect and provide for more than 5,500 inmates in the Orange County Jail daily. Due to pending litigation, we are restricted in providing additional information. Other parties do not have these restrictions and can release information and lodge accusations without concern for due process or protecting the integrity of ongoing investigations. We are confident that the court will consider all legally relevant information when making his ruling.''