Defense in double murder plans appeal in attempt to remove judge from case

Lawyers for a Costa Mesa man accused in a double murder said Friday that they will appeal a decision that left the trial in the hands of a judge whom the defense team tried to remove from the case.

A Los Angeles judge last week denied a motion asking that Orange County Superior Court Judge John Conley be barred from overseeing Daniel Patrick Wozniak’s trial because the defense hoped to call Conley as a witness about the possible misuse of jailhouse informants.

Public defender Scott Sanders has repeatedly accused the Orange County district attorney’s office and Sheriff’s Department of withholding evidence helpful to defendants and illegally sending snitches to coax incriminating information from Wozniak and other death penalty defendants.

Conley opposed Sanders’ recusal motion, and Los Angeles County Superior Court Judge Kevin Brazile dismissed as “speculation” Sanders’ contention that Conley could provide crucial details about the district attorney’s use of informants.

Conley is a former prosecutor who worked in the Orange County district attorney’s homicide unit from 1980 to 1982. He said the last time he used a jailhouse informant in a case was more than 30 years ago.

“Counsel for a party may not achieve disqualification of a judge by attempting to make a judge a witness in a proceeding unless there is a clear and compelling reason for the relevance of the judge’s testimony,” Brazile wrote in his March 9 ruling.

Brazile was selected to rule on Conley’s recusal because the defense and prosecution could not pick an Orange County judge they agreed could make an unbiased decision.

Sanders’ likely appeal of Brazile’s decision could further delay the trial for Wozniak, who is accused of killing two Orange Coast College students in 2010.

According to grand jury testimony from police, Wozniak confessed that he shot 26-year-old Army veteran Sam Herr in order to steal $50,000.

Prosecutors say Wozniak then dismembered Herr’s body in an attempt to hide it and killed Herr’s friend Juri “Julie” Kibuishi, 23, staging her body to look as if Herr had sexually assaulted her.

For months, Sanders has been crafting a motion to remove the district attorney’s office from Wozniak’s case and bar the death penalty as an option.

Sanders alleges that Wozniak spoke to a prolific jailhouse informant, but the district attorney’s office insists the informant was working on his own, not at the behest of prosecutors, which would be a violation of Wozniak’s rights.

Prosecutor Matt Murphy has said the argument about snitches is irrelevant because he immediately ruled out using any testimony from the informant as soon as he became aware of it.

Last week, Orange County Superior Court Judge Thomas Goethals removed the district attorney’s office from the case of Scott Dekraai — who has pleaded guilty to killing eight people in a Seal Beach salon in 2011 — based on similar accusations brought by Sanders. Goethals left the death penalty on the table in that case.

The state attorney general’s office, which replaced the Orange County prosecutors in the Dekraai case, said Friday that it would appeal Goethals’ decision.