SANTA ANA (CNS) - A judge today put off ruling on whether 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 asked Deputy District Attorney Cindy Nichols if she listened to a few three-way calls made by Waring to his mother and girlfriend and attorneys, prompting her to file a declaration stating she had not listened to the calls. Waring's attorney Joel Garson indicated that was unlikely in a reply, so Fish has scheduled an evidentiary hearing for Monday.
Waring's attorney, Joel Garson, initially argued in a motion last year that the charges against his client should be dropped because authorities recorded the defendant's phone calls as Waring was acting as his own attorney in the case. Listening in on phone calls between an attorney and client violate constitutional rights.
Nichols said in her declaration filed on Monday that the first time she became aware of the three-way calls from Waring to an attorney were when Costa Mesa police Detective George Maridakis testified about them on Jan. 8. She said she never discussed the content of the recordings with Maridakis.
Garson, however, said in his own declaration that in “several informal conversations” with Nichols recently, the prosecutor “told me that she spent her entire vacation listening to all the calls. She also told me during some of our casual conversations that she knew that (Waring) had been shopping for attorneys, providing me attorneys by name. I am unaware of any means that she could have known (Waring) was looking for a lawyer other than by the phone calls she was listening to.”
Maridakis said in a 41-page report submitted last February that “he did indeed come across these calls (and ceased listening),” Garson said.
Waring, 30, was bound over for trial following a preliminary hearing in November 2016 in which he represented himself. That case, however, was thrown out in 2017 because Waring, who insisted on going forward despite his attorney at the time saying he wasn't ready, did not get a chance to prepare for the preliminary hearing.
Prosecutors refiled charges, prompting Garson to file a motion a year ago alleging that his client's constitutional rights were violated when he was representing himself because his phone calls were recorded by authorities.
The allegations led the Orange County Sheriff's Department's jail phone call provider, GTEL, to acknowledge that a glitch in upgrading computer software dropped hundreds of numbers of attorneys that were supposed to be blocked from recordings. A separate probe is ongoing to determine if the rights of multiple other inmates were violated.
Garson found that none of his calls with Waring were recorded, so the attorney refocused on the hundreds of calls that were recorded when the defendant was acting as his own attorney.
Orange County prosecutors John Maxfield and Nichols argued that Waring's phone calls that were accessed by authorities did not contain any information that related to his case from Nov. 29 to Dec. 28, 2016, when Warning acted as his own attorney.
They argued in court papers that “in some of those calls, (Waring) discussed his case with his father, his mother, his girlfriend, his grandma, a man named Julian, and another man named Christian -- none of whom are lawyers and none of whom are currently listed as witnesses in this case.”
Maxfield also argued that Waring did not raise issues while making the calls and that he did not assert 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 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.”
In a hearing last Tuesday, Maxfield argued that Maridakis did not listen to Waring's calls until after the defendant's first preliminary hearing in 2016.
Fish asked Maxfield if he had concerns that there appears to be no process in place to guarantee that inmates without an attorney can get unmonitored phone calls despite court orders to that effect.
Maxfield said he believed “there are mechanisms within (the court orders)... for a defendant to follow up and take corrective steps” if the inmate believes calls were being improperly recorded. Inmates must ensure that their calls must relate only to their case, the prosecutor said.
“It's really incumbent on the defendant to take ownership,” Maxfield argued. Otherwise, he said, sheriff's deputies are in a tough spot having to decide between safety and stopping a defendant from abusing the phone calls to commit crimes and the rights of the accused.
“Otherwise you're going to have a blank check... just declare you're pro per and know that any call from the jail that you make will not be recorded,” Maxfield said.
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.”
Even if they didn't access the recorded calls until after the preliminary hearing, it hardly matters because it would affect Waring's defense in the trial, Garson said.
Garson said that perhaps the only way to fix the problem is to have someone in the sheriff's department assigned full-time to monitoring the calls of inmates representing themselves and to turn off the recording or send the information to a judge to determine if it's privileged information.
The system in place has deputies rotating in and out of the job every six months and there's a likelihood of ignorance of the law, Garson said.
The system could work the way investigators handle wire taps -- they just click off the recorder when the talk steers away from the issue covered by a court-ordered wiretap, Garson said outside of court.
Garson also has taken issue with a system that records requests from the inmates for case law and other legal information from the law library. In the Waring case, if a prosecutor accessed those records, they could tell what the defendant's legal theory would be in the case.